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University  of  California  •  Berkeley 


ELEMENTS 

OF 

WESTERN  WATER 
LAW 


BY 


A.  E.  CHANDLER 

Irrigation  and  Water  Right  Specialist;  Assistant  Professor  Irrigation 

Institutions,    University    of    California;  Secretary 

American  Engineering  Corporation, 

San  Francisco 


TECHNICAL  PUBLISHING  CO. 

SAN  FRANCISCO 

1913 


Copyright  1912 
Technical  Publishing 

Company 


a/ 


PREFACE 

The  following  chapters  were  published  as  separate 
articles  in  the  Journal  of  Electricity,  Power  and  Gas. 
They  present  in  abbreviated  form  part  of  a  course  in 
"Irrigation  Institutions"  given  to  advanced  students 
in  the  Colleges  of  Agriculture  and  Civil  Engineering  of 
the  University  of  California. 

As  the  western  law  of  waters  has  been  developed 
by  the  courts  it  is  necessary  to  quote  freely  from  the 
cases,  although  the  text  is  intended  for  those  untrained 
in  jurisprudence. 

Owing  to  the  restricted  space  available  for  the 
articles  as  first  published,  only  the  leading  cases  on 
each  point  have  been  cited,  but  an  attempt  has  been 
made  to  refer  to  important  cases  not  following  the 
established  rule. 

So  great  is  the  public  interest  in  our  water  re- 
sources today  that  no  explanation  is  deemed  necessary 
for  the  publication  of  a  book  on  a  legal  topic  to  be  read 
by  laymen. 

A.  E.  CHANDLER. 
San  Francisco,  December,  1912. 


CONTENTS 

CHAPTER  I. 

Early  Development  of  The  Doctrine  of  Appropriation 1 

Congressional  Act  of  1866 3 

California  Act  of  1872 7 

CHAPTER  II. 

Riparian  Rights  in  The  Western  States 11 

Early  Decisions    11 

States  Adopting  and  Those  Rejecting 20 

Lateral  Limits 22 

Riparian  Rights  Restricted  to  Riparian  Land 26 

Summary  of  Principles   27 

CHAPTER  III. 

The  Law  of  Underground  Waters 28 

Percolating  Waters 28 

Contrast  of  California  Rules  of  Percolating  Waters 

and  of  Riparian  Rights   35 

CHAPTER  IV. 

The  Doctrine  of  Appropriation 38 

Appropriations  Not  Restricted  to  Public  Lands 38 

Waters  Open  to  Appropriation 39 

Proceedings  to  Effect  Appropriations 41 

Incomplete  Appropriations   43 

The  Measure  of  The  Right   44 

Principles  of  Prior  Appropriation   45 

CHAPTER  V. 

Loss  of  Water  Rights 47 

Abandonment  and  Forfeiture    47 

Adverse  Use  or  Prescription 47 

Estoppel    53 

Rights  of  Way  by  Prescription   55 

CHAPTER  VI. 

Water  Right  Legislation 56 

California    56 

Colorado    57 

Wyoming    61 

Nebraska    65 

Idaho    67 

Utah   70 

Nevada    73 

New    Mexico,    North    Dakota,    Oklahoma    and    South 

Dakota    74 

Oregon     76 

Review  of  Legislation 77 

Conclusion    82 

CHAPTER  VII. 

Water  Rights  on  Interstate  Streams 83 

Court  Decisions    84 

Kansas  v.  Colorado  85 

Legislation  Regarding  Interstate  Streams  90 


CHAPTER  VIII. 

Rights  of  Way  Over  Public  Lands  for  Ditches  and   Res- 
ervoirs        94 

Act  of  March  3,  1891 96 

Act  of  May  11,  1898 98 

Act  of  February  1,  1905   98 

Act  of  February  15,  1901 99 

Rights  of  Way  for  Power  Purposes  Through  National 

Forests    99 

Special   State   Legislation    Regarding   Water   Rights 

for  Power  Purposes   101 

Comments  on  Water  Power  Legislation 102 

State  versus  Nation   103 

CHAPTER  IX. 

Commercial  Irrigation  Enterprises 106 

Examples  of  Companies  "Renting"  Water 108 

Companies  Selling  Water  Rights  But  No  Interest  in 

System 109 

Companies  Selling  Water  Rights  Carrying  an  Interest 

in   System    110 

Colorado  Anti-Royalty  Act  Ill 

Regulation  of  Commercial  Enterprises Ill 

Who  Owns  the  Water  Right 112 

CHAPTER  XI. 

The  Desert  Land  Act  and  The  Carey  Act 115 

The  Desert  Land  Act 115 

The  Carey  Act  117 

State  Legislation   119 

Development  Under  The  Carey  Act  121 

CHAPTER  XII. 
The  Reclamation  Act  123 

CHAPTER  X. 

I  rrigation    Districts    132 

The  California  Irrigation  District  Act 132 

Points  of  Difference  in  Irrigation  District  Acts 134 

The  Constitutionality  of  Irrigation  District  Acts 136 

Operations  Under  Irrigation  District  Acts 136 

Irrigation  Districts  in  California    137 

Irrigation  Districts  in  Colorado   and   Idaho 138 

Advantages  and  Disadvantages  of  the  District  Organ- 
ization      139 

CHAPTER  XIII. 
The    Desideratum    in    Legislation    Regarding   The    Public 

Waters     143 

Riparian  Rights   143 

Percolating  Waters  143 

Irrigation   Versus   Navigation 146 

"Monopoly"    in   Public   Waters    146 

Legislation  Regarding  Appropriations 147 


EARLY  DEVELOPMENT  OF  THE  DOCTRINE 
OF  APPROPRIATION. 

The  doctrine  of  appropriation  is  one  recognized  in 
the  law  of  waters  as  governing  a  class  of  rights  mark- 
edly distinct  from  the  riparian  rights  of  the  common 
law.  It  grew  out  of  the  occupancy  of  the  public  do- 
main during  the  mining  period  and  is  not  accepted 
outside  of  the  western  mining  and  irrigation  States. 
Although  of  so  recent  origin  as  far  as  our  own  people 
are  concerned,  the  following  quotation  from  Clough 
v.  Wing  (2  Ariz.  371)  shows  its  long  standing  in 
America : 

And  the  right  to  appropriate  and  use  water  for  irrigation 
has  been  recognized  longer  than  history,  and  since  earlier 
times  than  tradition.  Evidences  of  it  are  to  be  found  all  over 
Arizona  and  New  Mexico  in  the  ancient  canals  of  a  prehistoric 
people,  who  once  composed  a  dense  and  highly  civilized  popula- 
tion. These  canals  are  now  plainly  marked,  and  some  modern 
canals  follow  the  track  and  use  the  work  of  this  forgotten 
people.  The  native  tribes,  the  Pimas  and  Papagos  and  other 
pueblo  Indians,  now,  as  they  for  generations  have  done,  appro- 
priate and  use  the  waters  of  these  streams  in  husbandry,  and 
sacredly  recognize  the  rights  acquired  by  long  use,  and  no  right 
of  a  riparian  owner  is  thought  of.  The  only  right  in  water  is 
found  in  the  right  to  conduct  the  same  through  their  canals 
to  their  fields,  there  to  use  the  same  in  irrigation.  The  same 
was  found  to  prevail  in  Mexico  among  the  Aztecs,  the  Toltecs, 
the  Vaquis,  and  other  tribes  at  the  time  of  the  conquest,  and 
remained  undisturbed  in  the  jurisprudence  of  that  country 
until  now.  Clough  v.  Wing,  17  Pac.  453. 

As  was  to  be  expected  from  the  great  rush  to  the 
gold  fields  following  the  discovery  in  January,  1848, 
legal  controversies  early  arose  not  only  in  regard  to 
the  mining  claims  but  also  in  regard  to  the  ditches 
and  water  rights  used  in  connection  therewith.  One 


2  WESTERN   WATER   LAW 

of  the  very  early  cases  often  quoted  is  Irwin  v.  Phil- 
lips (5  Cal.  140)  decided  in  1855  and  the  following 
extract  from  the  opinion  clearly  shows  the  necessity 
for  the  doctrine  of  prior  appropriation : 

Courts  are  bound  to  take  notice  of  the  political  and  social 
condition  of  the  country  which  they  judicially  rule.  In  this  State 
the  larger  part  of  the  territory  consists  of  mineral  lands,  nearly 
the  whole  of  which  are  the  property  of  the  public.  No  right  of 
intent  of  disposition  of  these  lands  has  been  shown  either  by 
the  United  States  or  the  State  governments,  and  with  the  ex- 
ception of  certain  State  regulations,  very  limited  in  their  char- 
acter, a  system  has  been  permitted  to  grow  up  by  the  voluntary 
occupation  of  the  mineral  region  has  been  tacitly  assented  to  by  the 
one  government,  and  heartily  encouraged  by  the  expressed  legis- 
lative policy  of  the  other.  If  there  are,  as  must  be  admitted, 
many  things  connected  with  this  system,  which  are  crude  and 
undigested,  and  subject  to  fluctuation  and  dispute,  there  are 
still  some  which  a  universal  sense  of  necessity  and  propriety 
have  so  firmly  fixed  as  that  they  have  come  to  be  looked  upon 
as  having  the  force  and  effect  of  res  judicata.  Among  these 
the  most  important  are  the  rights  of  miners  to  be  protected  in 
the  possession  of  their  selected  localities,  and  the  rights  of  those 
who,  by  prior  appropriation,  have  taken  the  waters  from  their 
natural  beds,  and  by  costly  artificial  works  have  conducted  them 
for  miles  over  mountains  and  ravines,  to  supply  the  necessi- 
ties of  gold  diggers,  and  without  which  the  most  important 
interests  of  the  mineral  region  would  remain  without  develop- 
ment. So  fully  recognized  have  become  those  rights,  that, 
without  any  specific  legislation  conferring  or  confirming  them, 
they  are  alluded  to  and  spoken  of  in  various  acts  of  the  legis- 
lature in  the  same  manner  as  if  they  were  rights  which  had 
been  vested  by  the  most  distinct  expression  of  the  will  of  the 
lawmakers  *  *  *  This  simply  goes  to  prove  what  is  the 
purpose  of  the  argument,  that  however  much  the  policy  of  the 
State,  as  indicated  by  her  legislation,  has  conferred  the  privi- 
lege to  work  the  mines,  it  has  equally  conferred  the  right  to 
divert  the  streams  from  their  natural  channels,  and  as  these 
two  rights  stand  upon  an  equal  footing,  when  they  conflict, 
they  must  be  decided  by  the  fact  of  priority,  upon  the  maxim 
of  equity,  "Qui  prior  est  in  tempore,  potior  est  in  jure." 

Elsewhere  in  the  above  mentioned  opinion  it  is 
stated : 


DOCTRINE   OP  APPROPRIATION  3 

It  must  be  premised  that  it  is  admitted  on  all  sides  that  the 
mining  claims  in  controversy,  and  the  lands  through  which  the 
stream  runs  and  through  which  the  canal  passes,  are  a  part  of 
the  public  domain,  to  which  there  is  no  claim  of  private  pro- 
prietorship. 

The  miners  and  others  were  but  trespassers  on  the 
public  domain  as  Congress  had  passed  no  legislation 
recognizing  their  claims.  It  is  not  surprising  that 
a  movement  gained  weight  in  the  Eastern  States  to 
have  the  government  assert  its  ownership  to  the  mines 
and  ditches  and  other  developed  works  on  the  public 
lands.  As  far  as  the  West  is  concerned,  therefore,  the 
then  critical  situation  was  happily  relieved  by  the 
passage  of  the  famous  Act  of  1866  which  is  now  Sec- 
tion 2339  of  the  Revised  Statutes  of  the  United  States 
and  reads  as  follows : 

(Whenever,  by  priority  of  possession,  rights  to  the  use  of 
x  water  for  mining,  agricultural,  manufacturing,  or  other  pur- 
poses, have  vested  and  accrued,  and  the  same  are  recognized 
and  acknowledged  by  the  local  customs,  laws  and  decisions 
of  courts,  the  possessors  and  owners  of  such  vested  rights  shall 
be  maintained  and  protected  in  the  same;  and  the  right  of  way 
for  the  construction  of  ditches  and  canals  for  the  purposes  herein 
specified  is  acknowledged  and  confirmed;  but  whenever  any 
person,  in  the  construction  of  any  ditch  or  canal,  injures  or 
damages  the  possession  of  any  settler  on  the  public  domain, 
the  party  committing  such  injury  or  damage  shall  be  liable 
to  the  party  injured  for  such  injury  or  damage. 

In  1870  the  section  which  is  now  Section  2340  of 
the  Revised  Statutes  and  which  is  generally  construed 
with  Section  2339,  was  passed.  It  is  as  follows: 

All  patents  granted,  or  pre-emption  or  homesteads  allowed, 
shall  be  subject  to  any  vested  and  accrued  water- rights,  or  rights 
I      to  ditches  and  reservoirs  used  in  connection  with  such  water- 
rights   as   may  have  been  acquired  under  or  recognized  by  the 
preceding  section. 

It  is  to  be  noted  that  by  the  two  sections  above 
quoted  ^not  only  were  the  water__jrigh±s_  which  had 
vested  and  accrued  recognized,  but  also  the  rights  of 


4  WESTERN   WATER   LAW 

way  for  ditches  and  reservoirs  in  connection  there- 
with. 

The  first  noteworthy  judicial  construction  of  the 
Act  of  1866  was  by  the  Supreme  Court  of  Nevada  in 
the  case  of  Van  Sickle  v.  Haines  (7  Nev.  249)  decided 
in  January,  1872.  Both  parties  were  the  owners  in 
fee  of  their  respective  lands.  Haines'  patent  was  dated 
December  28,  1864,  and  long  prior  thereto  Van  Sickle 
had  diverted  part  of  the  waters  of  Daggett  Creek, 
which  diversion  was  interfered  with  by  Haines  in 
December,  1867,  under  the  claim  of  riparian  owner- 
ship. The  lower  court  rendered  judgment  in  favor 
of  Van  Sickle  on  the  grounds  of  prior  appropriation, 
but  the  Supreme  Court  held  that  such  rights  of  ap- 
propriation were  inferior  to  the  riparian  rights  of 
Haines  and  reversed  the  decision.  In  reference  to  the 
Act  of  1866,  the  Supreme  Court  said : 

The  Act  of  Congress  of  July,  1866,  if  it  shows  anything, 
shows  that  no  diversion  had  previously  been  authorized,  for 
if  it  had  whence  the  necessity  of  passing  the  Act,  which  appears 
simply  to  have  been  adopted  to  protect  those  who  at  that  time 
were  diverting  water  from  its  natural  channel? 

Doubtless,  all  patents  issued,  or  titles  acquired  from  the  United 
States,  since  July,  1866,  are  obtained  subject  to  the  rights  exist- 
ing at  that  time,  but  this  is  a  different  case,  for  if  the  appellant 
has  any  right  to  the  water,  he  acquired  it  by  the  patent  issued 
to  him  two  years  before  that  time,  and  with  which,  therefore, 
Congress  could  not  interfere. 

On  May  28,  1872,  the  Federal  Circuit  Court  for 
Nevada  decided  the  case  of  Union  Mill  &  Mining  Co.  v. 
Ferris  (2  Saw.  176).  The  mill  company,  as  a  riparian 
owner,  brought  the  action  to  enjoin  Ferris  and  other 
farmers  in  the  Upper  Carson  Valley  from  diverting 
the  waters  of  Carson  River.  Regarding  the  Act  of 
1866  the  court  said: 

For  seventeen  years  prior  to  1866,  the  mineral  land  of  Cali- 
fornia and  Nevada  had  been  occupied  by  the  citizens  of  the 
United  States,  without  objection  on  the  part  of  the  government. 
Canals  and  ditches  were  dug  at  this  time,  often  at  great  ex- 


DOCTRINE    OP   APPROPRIATION  5 

pense,  over  the  public  lands,  and  the  water  of  the  streams 
diverted  by  these  means  for  mining  and  other  purposes.  Local 
customs  grew  up  in  the  mining  districts,  by  common  consent, 
and  by  rules  adopted  at  miners'  meetings  for  governing  the 
location,  recording  and  working  of  mining  claims  in  the  par- 
ticular mining  district.  Possessory  rights  to  public  lands,  mining 
claims  and  water  were  regulated  by  State  statutes,  and  enforced 
by  the  State  courts.  *  *  * 

But  the  Act  is  prospective  in  its  operation,  and  cannot  be 
construed  so  as  to  divert  a  part  of  an  estate  granted  before 
its  passage.  If  it  be  admitted  that  Congress  has  the  power 
to  divest  a  vested  right  by  giving  a  statute  a  retrospective  oper- 
ation, that  interpretation  will  never  be  adopted  without  absolute 
necessity. 

To  appreciate  the  seriousness  of  the  two  Nevada 
decisions  above  mentioned,  it  must  be  remembered  that 
by  the  construction  therein  given,  one  who  received 
patent  prior  to  July,  1866,  for  riparian  land  could  en- 
join diversions  above  him  to  non-riparian  lands  no 
matter  how  long  such  diversions  had  existed ;  and  also 
that  any  one  who  secured  patent  prior  to  July,  1866,  to 
land  crossed  by  a  ditch  became  the  owner  of  such 
ditch,  or  at  least  could  stop  its  operation. 

Fortunately  for  the  early  investors  theJSupreme 
Qourt  of  the  United  States  did  not  adopt  the  Nevada 
Court's  view,  as  is  clearly  shown  in  the  case  of  Broder 
v.  Natoma  Water  &  Mining  Company  (101  U.  S.  274) 
decided  October,  1879.  The  water  company  had  con- 
structed a  ditch  at  an  expense  of  about  $200,000  in 
1853  on  lands  then  public.  Part  of  the  land  crossed 
was  -within  the  Central  Pacific  Railroad  grant  under 
the  Act  of  1864  and  Broder  became  the  owner  thereof 
and  brought  the  action  to  have  the  canal  declared  a 
nuisance  and  to  recover  $12,000  damages  on  account 
of  its  maintenance  on  the  land.  In  construing  the 
provisions  of  the  Act  of  1866  in  its  bearing  upon  the 
case,  the  Court  said : 

In  reference  to  his  lands  held  under  conveyance  from  the 
railroad  company,  it  might  be  a  question  of  some  difficulty 
whether  the  right  was  so  far  vested  in  that  company  before 


6  WESTERN   WATER   LAW 

the  passage  of  this  Act  of  1866,  that  the  latter  would  be  in- 
effectual as  regards  these  lands.  But  we  not  think  that  the 
defendant  is  under  the  necessity  of  relying  on  that  statute. 

It  is  the  established  doctrine  of  this  court  that  rights  of  miners, 
who  had  taken  possession  of  mines  and  worked  and  developed  them, 
and  the  rights  of  persons  who  had  constructed  canals  and  ditches 
to  be  used  in  making  operations  and  for  purposes  of  agricul- 
tural irrigation,  in  the  region  where  such  artificial  use  of  the 
water  was  an  absolute  necessity,  are  rights  which  the  govern- 
ment had,  by  its  conduct,  recognized  and  encouraged  and  was 
bound  to  protect,  before  the  passage  of  the  Act  of  1866.  We 
are  of  opinion  that  the  section  of  the  Act  which  we  have  quoted 
was  rather  a  voluntary  recognition  of  a  pre-existing  right  of 
possession,  constituting  a  valid  claim  to  its  continued  use,  than 
the  establishment  of  a  new  one.  This  subject  has  so  recently 
received  our  attention,  and  the  grounds  on  which  this  con- 
struction rests  are  so  well  set  forth  in  the  following  cases, 
that  they  will  be  relied  on  without  further  argument. 

The  Broder  v.  Natoma  Water  Company  decision 
has  continued  to  be  the  accepted  construction  of  the 
Act  of  1866,  and  what  uncertainty  may  have  arisen 
from  the  Nevada  decisions  was  thus  removed. 

As  the  first  appropriations  on  the  public  domain 
were  by  the  miners,  it  became  the  custom  to  initiate 
water  rights  by  posting  notices  similar  to  those  used 
for  the  mineral  claims.  The  fact  that  the  notice  in  the 
case  of  the  water  claim  could  hardly  be  seen  ex- 
cept by  accident  and  was  therefore  not  like  the  mining 
notice  which  could  be  seen  by  all  prospectors  passing 
the  mineral  claim,  did  not  appeal  to  the  early  miners 
and  has  failed  to  impress  our  California  legislators 
early  or  late.  The  water  claims  posted  in  accordance 
with  custom  were  recorded  in  the  county  records 
long  prior  to  any  legislation  authorizing  or  requiring 
such  recordation. 

Reference  has  been  made  to  Irwin  v.  Phillips  and 
the  rule  of  prior  appropriation.  In  the  following  year, 
1856,  the  case  of  Conger  v.  Weaver  (6  Cal.  548)  was 
decided  and  established,  as  between  claimants  on  gov- 
ernment land,  the  doctrine  of  relation  in  regard  to 
appropriations  in  the  following  words : 


DOCTRINE   OF  APPROPRIATION  7 

But,  from  the  nature  of  these  works,  it  is  evident  that  it 
requires  time  to  complete  them,  and  from  their  extent,  in  some 
instances,  it  would  require  much  time;  and  the  question  now 
arises,  at  what  point  of  time  does  the  right  commence,  so  as 
to  protect  the  undertaker  from  the  subsequent  settlements  or 
enterprises  of  other  persons.  If  it  does  not  commence  until 
the  canal  is  completed,  then  the  license  is  valueless,  for  after 
nearly  the  whole  work  has  been  done,  any  one,  actuated  by  malice 
or  self-interest,  may  prevent  its  accomplishment;  any  small 
squatter  settlement  might  effectively  destroy  it. 

But  I  apprehend  that,  in  granting  the  license  which  we  have 
presumed  for  the  purpose  before  us,  the  State  did  not  intend 
that  it  should  be  turned  into  so  vain  a  thing,  but  designed  that 
it  should  be  effectual  for  the  object  in  view;  and  it  conse- 
quently follows  that  the  same  rule  must  be  applied  here  to  pro- 
tect this  right  as  in  any  other. 

So,    in   the   case   of   constructing   canals,   under   the   license 

/  from  the  State,  the  survey  of  the  ground,  planting  stakes  along 

/     the  line,   and  actually  commencing  and  diligently  pursuing  the 

j      work,  is  as  much  possession  as  the  nature  of  the  subject  will 

\      admit,  and  forms  a  series  of  acts  of  ownership  which  must  be 

conclusive  of  the  right. 

In  an  earlier  case,  Eddy  v.  Simpson  (3  Cal.  252) 
decided  in  1853,  it  was  said : 

It  is  laid  down  by  our  law  writers,  that  the  right  of  prop- 
erty in  water  is  usufructuary,  and  consists  not  so  much  of  the 
.    fluid  itself  as  the  advantage  of  its  use.      *      *      *      The  right  is 
not   in   the   corpus  of  the   water,   and   only   continues   with   its 
possession. 

The  general  principles  of  prior  appropriation  were 
thus  established  by  the  California  Supreme  Court  in 
the  fifties.  As  new  cases  arose  they  were  enlarged 
upon  and  strengthened,  so  that  when  the  legislature 
did  finally  act  upon  this  subject  in  1872  the  sections 
adopted  were  but  declaratory  of  the  existing  law. 
The  sections  then  enacted  are  1410  to  1422  of  the 
Civil  Code  and  still  remain,  with  slight  amendments, 
the  only  statutory  provisions  on  appropriation  of 
water,  with  the  exception  of  special  legislation  re- 
garding appropriations  for  power  purposes  adopted 
at  the  regular  and  special  sessions  of  1911. 


8  WESTERN   WATER   LAW 

Section  1415,  providing  for  notices  of  appropria- 
tion, and  Section  1416,  providing  for  prosecution  of 
the  work,  are  as  follows : 

SECTION  1415.  Notice  of  Appropriation.  A  person  desiring 
to  appropriate  water  must  post  a  notice,  in  writing,  in  a  con- 
spicuous place  at  the  point  of  intended  diversion,  stating  therein : 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of 
(giving  the  number)  inches  measured  under  a  four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of 
intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted, 
be  recorded  in  the  office  of  the  recorder  of  the  county  in  which 
it  is  posted. 

After  filing  such  copy  for  record,  the  place  of  intended  diver- 
sion or  the  place  of  intended  use  or  the  means  by  which  it  is 
intended  to  divert  the  water,  may  be  changed  by  the  person 
posting  said  notice  or  his  assigns,  if  others  are  not  injured  by 
such  change.  This  provision  applies  to  notices  already  filed  as 
well  as  to  notices  hereafter  filed. 

SECTION  1416.  Within  sixty  days  after  the  notice  is  posted, 
the  claimant  must  commence  the  excavation  or  construction  of 
the  works  in  which  he  intends  to  divert  the  water,  or  the  survey, 
road  or  trail  building,  necessarily  incident  thereto,  and  must 
prosecute  the  work  diligently  and  uninterruptedly  to  comple- 
tion, unless  temporarily  interrupted  by  snows  or  rain;  pro- 
vided, that  if  the  erection  of  a  dam  has  been  recommended 
by  the  California  Debris  Commission  at  or  near  the  place  where 
it  is  intended  to  divert  the  water,  the  claimant  shall  have  sixty 
days  after  the  completion  of  such  dam  in  which  to  commence 
the  excavation  or  construction  of  the  works  in  which  he  in- 
tends to  divert  the  water;  provided,  that  whenever  any  city  and 
county,  *  *  *  (A  proviso  added  in  1911  to  relieve  cities 
and  towns  from  the  necessity  of  prosecuting  the  construction 
work  with  the  diligence  required  of  other  appropriates.) 

Section   1418  provides  that  the  water  right  will 
relate  back  to  the  time  of  posting  notice  on  compli-  / 
ance  with  above  rules. 


DOCTRINE    OF   APPROPRIATION  9 

Section  1422  provides  that  when  the  "place  of  in- 
tended diversion  or  any  part  of  the  route"  is  within 
a  national  park,  forest  reserve  or  other  reservation, 
the  claimant  shall  have  sixty  days  from  the  date  of 
approval  of  his  application  to  occupy  such  national 
park,  etc.,  within  which  to  commence  work  as  pro- 
vided in  Section  1416. 

As  stated  above,  under  the  doctrine  of  relation 
laid  down  in  Conger  v.  Weaver,  the  right  to  appropri- 
ate water,  after  the  completion  of  the  diversion  works 
with  reasonable  diligence,  dated  back  to  the  first  steps 
taken  in  regard  thereto.  The  statute  in  Section  1418, 
fixes  this  first  step  as  the  posting  of  the  notice  (Section 
1415).  It  is  now  well  settled  (Wells  v.  Mantes,  99 
Cal.  583)  that  the  statute  need  not  be  followed  in 
order  to  make  a  valid  appropriation  in  California  (ex- 
cept for  power  purposes  under  the  1911  statute  which 
is  not  under  consideration  in  the  present  article),  but 
by  failure  to  follow  the  statute  the  benefit  of  the 
doctrine  of  relation  is  lost  and  the  right  dates  back 
only  to  the  completion  of  the  work.  There  is  there- 
fore nothing  to  be  gained  and  much  to  be  lost  by  not 
following  the  statute. 

As  is  shown  by  Sections  1415  and  1416  there  is 
no  public  officer  in  California  concerned  in  the  form 
or  contents  of  the  notice  of  appropriation  and  the 
consequent  construction  work.  Our  county  records 
abound  in  notices  under  which  no  construction  or  sur- 
vey work  was  ever  done.  Such  notices  are  not  worthy 
of  the  slightest  consideration  and  are  in  no  way  "clouds 
upon  the  title,"  as  is  often  claimed.  Unless  the  con- 
struction work  is  begun  and  continued  with  reason- 
able diligence  to  completion,  as  provided  in  the  statute, 
no  right  accrues.  The  use  of  the  water  alone  fixes 
the  right. 

In  regard  to  the  statements  required  by  the  three 
subdivisions  of  Section  1415,  practically  any  notice,  re- 
gardless of  form,  giving  the  number  of  inches  claimed, 
the  purposes,  place  of  use,  means  of  diversion  and  size 
of  conduit,  will  suffice.  In  the  records  are  found 


10  WESTERN  WATER   LAW 

examples  of  empty  generalities  as  well  as  some  of 
refined  details.  As  an  illustration  of  how  little  need 
be  stated,  to  be  accepted  as  sufficient  by  the  Supreme 
Court,  the  following  notice  from  the  case  of  De  Wolf- 
skill  v.  Smith  (5  Cal.  App.  175)  is  quoted. 

Notice  of  Appropriation  of  Water.  Take  notice  that  the 
undersigned  claims  fifteen  hundred  inches  of  water  measured 
under  a  four-inch  pressure  flowing  from  and  at  the  wells  bored 
by  the  San  Jacinto  Oil  Company  on  the  land  which  would  be 
the  northwest  quarter  of  section  four,  township  three  south, 
range  two  west,  San  Bernardino  meridian,  if  said  land  were 
surveyed  by  the  United  States,  and  I  intend  to  divert  said 
water  at  the  three  several  points  where  this  notice  is  posted, 
to  wit,  at  each  of  said  wells  bored  by  the  San  Jacinto  Oil  Com- 
pany. 

I  intend  to  use  said  water  for  domestic  and  irrigation  pur- 
poses on  the  land  which  was  known  as  the  Rancho  San  Jacinto 
Nuevo  and  the  Morena,  Lakeview  and  Alesandro  Colonies  and 
adjoining  lands  in  the  county  of  Riverside,  State  of  California. 

I  intend  to  divert  said  water  by  means  of  ditches  of  sufficient 
capacity  to  carry  same,  leading  from  each  of  said  points. 

Dated  the  thirteenth  day  of  October,  1902. 

ELENA  P.  DE  WOLFS  KILL. 
Witness:    DAVID  G.  DE  WOLFSKILL. 


CHAPTER  II. 
RIPARIAN  RIGHTS  IN  THE  WESTERN  STATES 

According  to  the  common  law  doctrine  of  riparian 
rights  in  the  law  of  waters,  each  owner  along  a  stream 
was  entitled  to  have  the  waters  thereof  flow  in  the 
natural  channel,  unpolluted  in  quality  and  undimin- 
ished  in  quantity.  A  strict  interpretation  of  the  doc- 
trine would  therefore  forbid  any  use  of  the  waters  of 
the  stream  whatsoever.  It  was  early  modified  in 
England  so  that  two  uses  are  recognized — ordinary 
or  natural,  including  the  use  for  domestic  and  stock 
purposes,  and  extraordinary  or  artificial,  including 
the  use  for  irrigation  along  the  banks  and  also  for 
mechanical  purposes.  For  "ordinary"  uses  the  upper 
riparian  owner  is  allgwed/to  take  the  entire  stream 
if  necessary ;  but  for  "extraordinary"  uses  he  is  entitled 
to  water  only  when  such  use  will  not  interfere  with 
a  like  use  by  other  riparian  owners — that  is,  he  must 
share  the  stream  with  others  along  its  banks. 

As  shown  in  the  previous  chapter,  a  different  doc- 
trine— that  of  appropriation — grew  up  during  the  early 
occupancy  by  the  miners  of  the  public  domain  in  the 
Western  States.  It  was  also  shown  that  the  early 
California  cases  establishing  the,  new  doctrine  were 
between  parties  not  holding  title  to  any  land  along 
the  streams ;  and  that  the  Supreme  Court  of  Nevada  in 
Van  Sickle  v.  Haines  (7  Nev.  249)  and  the  Federal 
Circuit  Court  for  Nevada  in  Union  Mill  &  Mining  Co. 
v.  Ferris  (2  Saw.  176)  in  1872  held  that  in  cases  where 
title  to  riparian  land  had  passed  from  the  Government, 
the  new  doctrine  must  give  way  to  the  older  and  long 
recognized  (in  England  and  the  Eastern  States)  doc- 
trine of  riparian  rights. 

11 


12  WESTERN   WATER   LAW 

The  basis  of  the  argument  for  the  rule  laid  down 
in  the  two  Nevada  cases  was  a  statutory  provision 
making  the  common  law  of  England  the  rule  of  deci- 
sion in  all  the  Nevada  courts.  It  is  important  to  note 
the  following  words  of  Chief  Justice  Lewis  (in  Van 
Sickle  v.  Haines)  regarding  the  two  doctrines,  as  they 
show  an  erroneous  view  of  the  doctrine  of  appropria- 
tion which,  unfortunately,  has  been  shared  by  the 
courts  in  many  Western  States : 

"It  (the  common  law)  is  a  rule  which  gives  the  greatest 
right  to  the  greatest  number,  authorizing  each  to  make  a  reason- 
able use  of  it,  providing  he  does  no  injury  to  the  others  equally 
entitled  to  it  with  himself;  whilst  the  rule  of  prior  appropriation 
here  advocated  would  authorize  the  first  person  who  might  choose 
to  make  use  of  or  divert  a  stream,  to  use  or  even  waste  the  whole 
to  the  utter  ruin  of  others  who  might  wish  it." 

In  marked  contrast  to  the  attitude  of  the  Nevada 
courts  in  the  early  cases  is  that  of  the  Colorado  courts. 
In  Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443,  decided 
in  1882,  the  issue  between  riparian  owners  and  appro- 
priators  was  before  the  court  for  the  first  time.  Coffin 
and  others  were  riparian  owners  along  the  St.  Vrain 
River,  who,  in  the  dry  season  of  1879,  interfered  with 
the  ditch  of  the  Ditch  Company,  which  diverted  the 
St.  Vrain  waters  to  another  watershed.  The  company 
being  a  prior  appropriator,  Coffin  relied  upon  his  ripa- 
rian right.  The  opinion  is  full  of  strong  expressions 
showing  the  need  of  appropriation  in  an  arid  section, 
but  a  few  concluding  sentences  only  are  given  here : 

"We  conclude,  then,  that  the  common-law  doctrine  giving  the 
riparian  owner  a  right  to  the  flow  of  water  in  its  natural  channel 
upon  and  over  his  lands,  even  though  he  makes  no  beneficial  use 
thereof,  is  inapplicable  to  Colorado.  Imperative  necessity,  un- 
known to  the  countries  which  gave  it  birth,  compels  the  recogni- 
tion of  another  doctrine  in  conflict  therewith.  And  we  hold  that, 
in  the  absence  of  express  statutes  to  the  contrary,  the  first  ap- 
propriator of  water  from  a  natural  stream  for  a  beneficial  pur- 
pose has,  with  the  qualifications  contained  in  the  constitution,  a 
prior  right  thereto  to  the  extent  of  such  appropriation." 

In  the  late  seventies  the  case  of  Jones  v.  Adams, 
(19  Nev.  78),  arose  out  of  conflict  over  the  waters  of 
Sierra  Creek,  which,  like  Daggett  Creek  of  the  Van 


RIPARIAN   RIGHTS  13 

Sickle  case,  is  a  small  Sierra  Creek  on  the  west  side  of 
Carson  Valley  in  Nevada.  It  was  decided  by  the  Su- 
preme Court  of  Nevada  in  1885  and  the  Van  Sickle  case 
was  overruled  on  the  ground  that  the  doctrines  of  the 
common  law  were  inapplicable  "to  the  wants  and 
necessities  of  the  people,  whether  engaged  in  mining, 
agricultural  or  other  pursuits."  The  doctrine  of  ripa- 
rian rights  was  thus  excluded  from  the  law  of  waters 
in  Nevada  and  has  so  remained. 

The  year  following  the  decision  in  Jones  v.  Adams, 
the  Supreme  Court  of  California  decided  the  celebrated 
case  of  Lux  v.  Haggin  (69  Cal.  255).  The  extreme 
length  of  the  opinion  (two  hundred  pages — probably 
the  longest  in  the  California  reports)  is  sufficient  evi- 
dence of  its  importance  and  the  interest  in  the  issue 
involved.  Lux  and  others  sought  to  stop  Haggin  from 
diverting  the  waters  of  Kern  River  which  would  natur- 
ally flow  down  Buena  Vista  Slough,  to  which  their 
lands  were  riparian.  As  in  the  Van  Sickle  case,  the 
court  had  a  wrong  impression  of  appropriation  and 
stated  "...  It  does  not  require  a  prophetic  vis- 
ion to  anticipate  that  the  adoption  of  the  rule,  so 
called,  of  'appropriation'  would  result  in  a  monopoly 
of  all  the  waters  of  the  state  by  comparatively  few  in- 
dividuals. .  .  ." 

The  riparian  doctrine  as  modified  in  Lux  v.  Hag- 
gin  is  commonly  called  the  California  rule.  Its  princi- 
ples, so  often  quoted,  are  best  given  in  the  words  of  the 
court : 

"By  the  common  law  the  right  of  the  riparian  proprietor  to 
the  flow  of  the  stream  is  inseparably  annexed  to  the  soil,  anl 
passes  with  it,  not  as  an  easement  or  appurtenance,  but  as  part 
and  parcel  of  it.  JJse^does  not  create  the  right,  and  disuse  can- 
not destroy  or  suspend  it.  The  right  in  each  extends  to  the 
natural  and  usual  flow  of  all  the  water,  unless  where  the  quan- 
tity has  been  diminished  as  a  consequence  of  the  reasonable  ap* 
plication  of  it  by  other  riparian  owners  for  purposes  hereafter 
to  be  mentioned. 

"By  our  law  the  riparian  proprietors  are  entitled  to  a  rea- 
sonable use  of  the  waters  of  the  stream  for  the  purpose  of  irri- 
gation. What  is  such  reasonable  use  is  a  question  of  fact,  and 


14  WESTERN   WATER   LAW 

depends    upon    the   circumstances    appearing   in    each   particular 
case.    ..." 

Lux  v.  Hag-gin  was  decided  by  a  divided  court  of 
four  to  three.  It  has  not  only  fastened  the  rule  of  ripa- 
rian rights  upon  California,  seemingly  for  all  time,  but 
has  been  the  main  reliance  of  the  other  western 
states  following  the  California  rule.  The  following 
extract  from  the  dissenting  opinion  of  Justice  Ross 
shows  how  decided  was  the  difference  of  opinion 
among  the  Justices : 

"The  common-law  doctrine  of  riparian  rights  being  wholly 
inconsistent  with  and  antagonistic  to  that  of  appropriation,  it 
necessarily  follows  that  when  the  federal  and  state  governments 
assented  to,  recognized,  and  confirmed,  with  respect  to  the  waters 
upon  the  public  lands,  the  doctrine  of  appropriation,  they  in  effect 
declared  that  that  of  riparian  rights  did  not  apply.  The  doctrine 
of  appropriation  thus  established  was  not  a  temporary  thing,  to 
exist  only  until  some  one  should  obtain  a  certificate  or  patent  for 
forty  acres  or  some  other  subdivision  of  the  public  land  bor- 
dering on  the  river  or  other  stream  of  water.  It  was,  as  has 
been  said,  born  of  the  necessities  of  the  country  and  its  people, 
was  the  growth  of  years,  permanent  in  its  character,  and  fixed 
the  status  of  water  rights  with  respect  to  public  lands." 

The  California  rule  has  been  adopted  in  California, 
Kansas,  Montana,  Nebraska,  North  Dakota,  Oklahoma, 
Oregon,  South  Dakota,  Texas  and  Washington.  Parts 
of  each  of  the  states  named  are  so  humid  that  irriga- 
tion is  not  only  not  necessary,  but  there  is  a  demand 
for  drainage.  In  the  remainder  of  the  irrigation 
states — Arizona,  Colorado,  Idaho,  Nevada,  New  Mex- 
ico, Utah  and  Wyoming — the  doctrine  of  riparian 
rights  has  been  abrogated  and  the  so-called  Colorado 
rule  followed ;  that  is,  the  doctrine  of  appropriation  ex- 
clusively. It  may  assist  one  to  remember  the  above 
classification  by  noting  that  the  semi-arid  or  "border" 
states  (that  is,  bordering  the  irrigation  zone)  follow 
the  Caliornia  rule,  and  that  the  strictly  arid  or  "inte- 
rior" states  (that  is,  well  within  the  irrigation  zone) 
follow  the  Colorado  rule. 

One  often  hears  the  remark  that  there  is  no  real 
conflict  between  the  doctrines  in  California  to-day,  and 


RIPARIAN    RIGHTS  15 

it  many  times  comes  from  a  supposedly  reliable  source. 
Even  the  Supreme  Court  of  Nevada  in  a  recent  case, 
Twaddle  v.  Winters  (29  Nev.  88)  decided  in  1906,  in 
speaking  of  the  passing  of  the  doctrine  of  riparian 
rights,  quoted  with  approval  the  testimony  of  a  Cali- 
fornia Congressman  in  the  case  of  Kansas  v.  Colorado, 
in  which  he  said  "that  there  had  been  a  departure  from 
the  principles  laid  down  in  Lux  v.  Haggin,  because  at 
that  time  the  value  of  water  was  not  realized ;  that  the 
decision  had  been  practically  reversed  by  the  same 
court  on  subsequent  occasions,  and  that  the  doctrine 
of  prior  appropriation  and  the  application  of  water  to 
a  beneficial  use  is  in  effect  in  force  now  in  that  state." 

The  above  statement  is  entirely  misleading,  as  the 
California  Supreme  Court  has  not  only  not  departed 
from  its  position  in  Lux  v.  Haggin,  but  has  within  the 
past  few  years  handed  down  opinions  which  almost 
nullify  the  doctrine  of  appropriation  under  certain 
physical  conditions. 

While  the  Nevada  Supreme  Court  was  writing  its 
opinion  in  Twaddle  v.  Winters,  the  case  of  Miller  & 
Lux  v.  Madera  Canal  Co.,  (155  Cal.  59)  was  before  the 
California  Supreme  Court.  It  was  finally  decided  in 
January,  1909.  Miller  &  Lux  as  riparian  owner  along 
the  lower  Fresno  River  sought  to  enjoin  the  Madera 
Canal  Company  from  diverting  the  flood  waters  thereof  , 
for  storage  in  reservoirs.  The  Fresno  River  drains 
only  the  lower  mountain  area  and  is  therefore  dry 
early  in  the  summer.  The  canal  company  is  the  owner 
of  a  system  of  ditches  for  the  lands  in  the  vicinity  of 
Madera  and  intended  to  make  use  of  certain  natural 
depressions  as  reservoirs  so  that  the  flood  waters  of 
May  and  early  June  might  be  stored  for  use  later  in 
the  season.  The  river  banks  through  the  Miller  & 
Lux  property  are  so  low  that  the  floods  annually  over- 
flow them  and  deposit  "on  such  lands  large  quantities 
of  fertilizing  and  enriching  materials,  increasing  their 
productiveness  and  enhancing  their  value." 

The  canal  company  argued  that  it  intended  to 
divert  and  store  only  the  flood  waters  which  could 


16  WESTERN   WATER   LAW 

not  be  considered  part  of  the  natural  flow  to  which 
riparian  owners  were  entitled,  and  that  the  use,  if  such 
it  could  be  called,  of  the  flood  waters  by  Miller  &  Lux 
was  too  wasteful  and  unreasonable  to  be  tolerated. 
The  Court  refused  to  accept  this  argument  in  the  fol- 
lowing language : 

"What  the  riparian  proprietor  is  entitled  to  as  against  non- 
riparian  takers  is  the  ordinary  and  usual  flow  of  the  stream. 
There  is  no  good  reason  for  saying  that  the  greatly  increased  flow 
following  the  annually  recurring  fall  of  rain  and  melting  of  snow 
in  the  region  about  the  head  of  the  stream  is  any  less  usual  or 
ordinary  than  the  much  diminished  flow  which  comes  after  the 
rains  and  the  melted  snows  have  run  off." 

"The  doctrine  that  a  riparian  owner  is  limited  to  a  reason^ 
able  use  of  the  water  applies  only  as  between  different  riparian 
proprietors.  As  against  an  appropriator  who  seeks  to  divert 
water  to  non-riparian  lands,  the  riparian  owner  is  entitled  to  re- 
strain any  diversion  which  will  deprive  him  of  the  customary 
flow  of  water  which  is  or  may  be  beneficial  to  his  land.  He  is  not 
limited  by  any  measure  of  reasonableness." 

A  case  even  more  bewildering  to  appropriators,  if 
possible,  was  that  of  Miller  v.  Bay  Cities  Water  Com- 
pany, c>cided  one  year  later — February,  1910.  Miller 
was  the  owner  of  a  small  orchard  in  the  Santa  Clara 
Valley  and  had  for  years  irrigated  it  by  pumping  from 
a  well.  The  water  company  intended  to  construct  a 
dam  to  bed  rock  across  the  "lower  gorge"  of  the  Coy- 
ote River  and  thus  impound  the  flood  waters  of  the 
stream  for  diversion  to  San  Francisco  or  other  bay 
cities.  Below  the  lower  gorge  the  river  flows  through 
Santa  Clara  Valley  to  San  Francisco  Bay,  so  that  no 
lower  storage  is  possible.  Miller  claimed  that  the 
dam  would  prevent  the  underground  waters  from 
reaching  the  water  bearing  stratum  tapped  by  his  well 
and  sought  an  injunction. 

The  Supreme  Court  sustained  the  finding  of  the 
lower  court  that  the  water  bearing  stratum  below 
Miller's  land  has  its  "intake"  in  the  vast  bed  of  gravel 
in  the  lower  gorge  and  is  supplied  by  the  surface  and 
subsurface  waters  of  the  Coyote  River  flowing  through 


RIPARIAN    RIGHTS  17 

said  gorge.  It  accordingly  affirmed  the  decree  perpet- 
ually enjoining  the  water  company  "from  arresting 
or  obstructing  at  or  above  the  lower  gorge  (except  :r,C\2f 
for  the  reasonable  use  thereof  on  the  lands  of  said  cor- 
poration in  the  exercise  of  its  riparian  rights)  any  of 
the  water  of  the  Coyote  River  which,  excepting  for 
said  arresting  or  diverting,  would  flow  on  the  surface 
of  the  bed  of  said  river  through  said  gorge,  or  would 
flow  or  percolate  through  said  gorge  underneath  the 
surface  thereof." 

In  a  later  chapter  it  will  be  shown  that  the  owners 
of  land  overlying  a  water  bearing  stratum  are  treated 
in  California  as  riparian  owners,  so  the  Supreme  Court 
held  that  the  water  company  was  properly  restrained 
from  diverting  to  non-riparian  lands  the  water  which 
would  flow  through  the  stratum  tapped  by  Miller's 
well.  The  water  company  insisted  "that  if  the  plain- 
tiff has  a  right  to  enjoin  the  diversion  of  the  waters 
of  the  stream  which  would  otherwise  percolate  to  and 
supply  the  artesian  stratum  underlying  his  land,  the 
court  was  not  warranted  in  enjoining  the  appellants 
from  diverting  the  flood  waters  of  the  Coyote  River, 
which  it  was  claimed  were  wasted  and  lost  in  the  bay 
of  San  Francisco." 

Regarding  this  argument  the  Supreme  Court  said: 
"All  these  waters  are  necessary,  of  themselves  or  by  their 
force,  to  supply  underground  waters,  which  they,  even  now,  fail 
to  do  to  the  full  capacity  of  the  underlying  strata,  to  which  full 
capacity  the  plaintiff  and  others  interested  in  them  are  entitled. 
.  .  .  We  are  not  prepared  to  say  that,  even  in  their  flow  after 
passing  the  gravels  in  which  the  intake  to  these  artesian  strata 
lie,  they  serve  no  other  useful  purpose,  but  certainly  these  storm 
waters  do  not  become  waste  until  they  have  flowed  over  these 
gravel  beds  and  are  on  their  way  to  the  bay.  It  is  only  there 
that  it  may  be  said  that  they  can  perform  no  further  useful 
service,  the  only  place  where  they  first  become  waste  waters,  and 
where,  without  apparently  invading  the  rights  of  anyone  they 
may  be  diverted.  No  reasonable  objection  could  be  made  to  the 
diversion  of  the  waters  there  because  they  are  then,  for  all  prac- 
tical purposes,  waste  waters." 

The  above  ruling  seems  to  establish  so  wasteful 
a  policy  that  Justice  Shaw  wrote  a  concurring  opinion 


18  WESTERN   WATER   LAW 

and  clearly  presented  the  dire  need  of  storage  of  our 
flood  waters,  showing  the  accomplishment  of  the  triple 
purpose  of  lessening  damage  by  overflow,  affording 
irrigation  water  during  the  dry  season  and, 
through  return  waters  from  increased  irrigation, 
bettering  navigation  during  the  low  water  pe- 
riod. He  held,  however,  that  the  conditions  in  the 
Santa  Clara  Valley  are  not  paralleled  elsewhere  in  the 
State,  except  it  may  be  in  the  San  Fernando  valley,  and 
call  for  the  rule  laid  down ;  that  the  floods  when  waste 
occurs  are  infrequent  and  such  waste  small  and  prac- 
tically indeterminable ;  that  the  storage  at  chance  in- 
tervals of  such  small  quantities,  subject  to  heavy  evap- 
oration losses,  would  be  of  little  value ;  and  that  grant- 
ing permission  to  store  such  waste  while  conferring 
no  substantial  benefit  upon  the  water  company  would 
lessen  the  value  of  the  valley  property  overlying  the 
water  bearing  stratum. 

The  two  cases  above  discussed  are  of  particular 
interest  as  the  era  of  reservoir  building  in  the  states 
recognizing  the  riparian  doctrine  is  just  beginning.  The 
point  to  be  remembered  is  that  each  case  deals  with 
such  conditions  that  the  court  believes  actual  damage 
would  be  done  if  storage  was  allowed.  This  is  em- 
phasized in  the  recent  case  of  Miller  &  Lux  v.  Fresno 
Flume  Co.  (158  Cal.  626),  decided  November  22,  1910, 
wherein  the  plaintiff  sought  to  have  enjoined  the  main- 
tenance of  defendant's  dam  and  its  alleged  interference 
with  the  natural  flow  of  Stevenson  Creek,  a  tributary 
of  the  San  Joaquin  River. 

Plaintiffs  quote  many  California  cases  "as  estab- 
lishing the  proposition  that  the  riparian  owner  is 
entitled  to  the  unobstructed  flow  of  a  stream  at  all 
times,  including  flood  waters and  that,  with- 
out regard  to  damage,  it  is  the  right  of  every  riparian 
proprietor  to  have  the  water  corne  to  his  land  through 
its  natural  channel,  undiminished  in  quantity  and  un- 
impaired in  quality,  save  to  the  extent  that  results 
from  reasonable  use  of  the  water  by  other  riparian 
owners  upon  the  stream." 


RIPARIAN    RIGHTS  19 

In  answer  to  this  argument  the  court  says : 
"But  the  cases  do  not  support  the  position  which  appellants 
take.  Even  if  at  common  law  or  under  the  civil  law  it  was  a 
part  of  the  usufructuary  right  of  the  riparian  owner  to  have  the 
water  flow  by  for  no  purpose  other  than  to  afford  him  pleasure 
in  its  prospect,  such  is  not  the  rule  of  decision  in  this  state.  .  .  . 
It  will  be  found,  therefore,  that  the  decisions  of  this  state 
not  only  do  not  deny  the  right  to  the  use  of  storm  and  flood 
waters,  but  encourage  the  impounding  and  distribution  of  those 
waters  wherever  it  may  be  done  without  substantial  damage  to  the 
..existing  rights  of  owners." 

The  court  continues : 

"In  Miller  v.  Bay  Cities  Water  Co.,  157  Cal.  256  (107  Pac. 
115),  the  principle  is  clearly  recognized  and  declared  that  an  ap- 
propriator  of  water  may  divert  for  use  to  any  point  beyond  the 
watershed  any  portion  of  the  waters  of  the  stream  which  serves 
no  useful  purpose  either  to  the  riparian  owners,  or  in  supplying 
the  underground  stratum,  or  such  waters  as  are  in  excess  of  the 
quantity  necessary  for  such  purposes" ; 

And  later  in  quoting  from  Miller  &  Lux  v.  Madera 
Canal  Company,  states, 

"That  our  cases  'decide  that  an  injunction  restraining  the 
.diversion  of  storm  or  flood  waters  will  not  be  granted  at  the 
instance  of  a  riparian  owner,  when  it  appears  that  he  will  not  be 
injured  in  any  way  by  such  diversion.' " 

It  is  finally  concluded  that  if  the  doctrine  laid  down 
in  the  earlier  cases  confers  such  rights  upon  riparian 
owners  as  claimed  by  plaintiffs,  then  such  earlier  cases 
may  be  considered  modified  by  the  later  decisions.  It 
is  shown  in  the  closing  part  of  this  opinion  that  both 
parties  are  really  riparian  owners  so  that  the  relative 
rights  of  appropriators  and  riparian  owners  did  not 
actually  arise  in  the  case.  The  language  used  has 
therefore  the  force  of  a  dictum  only,  but  as  it  was 
accepted  by  an  undivided  court  it  will  undoubtedly 
hold  in  such  cases. 

The  conclusion  that  must  be  drawn  from  the 
above  is  that  Jower  ^^n^n^wners_rnay  not  only 
enjoin  the  diversion  of  the  natural  flow  but  may  also 
enjoin  the  storage  of  even  the  flood  waters  if  such  stor- 
age will  result  in  damage,  either  present  or  prospective. 
It  is  therefore  of  vital  interest  to  know  the  limits  of 


20  WESTERN   WATER   LAW 

riparian  lands  and  the  general  limitations  which  other 
states  have  placed  upon  the  riparian  doctrine. 

The  modified  rule  of  riparian  rights  has  been  fol- 
lowed by  California,  Kansas,  Montana,  Nebraska, 
North  Dakota,  Oklahoma,  Oregon,  South  Dakota, 
Texas  and  Washington;  and  has  been  rejected  by  Ari- 
zona, Colorado,  Idaho,  Nevada,  New  Mexico,  Utah 
and  Wyoming.  Its  rejection  by  the  above  States  was 
not  due  to  constitutional  or  statutory  provisions  but 
to  the  fact  that  the  doctrine  was  entirely  unsuited 
to  the  physical  conditions  existing  in  an  arid  region, 
as  shown  by  the  quotations  from  Jones  v.  Adams  and 
Coffin  v.  Left  Hand  Ditch  Co.,  given  in  the  previous 
article.  Similar  language  was  used  by  the  courts  of 
the  other  arid  States  abrogating  the  doctrine. 

The  only  Supreme  Court  holding  that  the  doctrine 
has  been  modified  by  statute  is  that  of  Nebraska.  In 
Crawford  v.  Hathaway  (67  Neb.  325)  decided  Febru- 
ary 4,  1903,  it  is  held : 

The  irrigation  act  of  1889  abrogated  in  this  State  the  com- 
mon law  rule  of  riparian  ownership  in  water,  and  substituted 
in  lieu  thereof  the  doctrine  of  prior  appropriation.  This  legis- 
lation could  not  and  did  not  have  the  effect  of  abolishing  ripar- 
ian rights  which  had  already  accrued,  but  only  of  preventing 
the  acquisition  of  such  rights  in  the  future. 

The  Nebraska  irrigation  act  of  March  19,  1889, 
above  referred  to,  was  similar  to  the  California  statute 
of  1872  providing  for  the  appropriation  of  water.  This 
statute  was  considered  at  length  in  Lux  v.  Haggin — 
the  latter  party  contending  "that  the  Civil  Code  gives 
*  *  *  a  right  to  the  water  superior  to  that  of 
the  riparian  proprietor  below."  Section  1422  of  the 
Civil  Code  then  contained  the  following  words :  "The 
rights  of  riparian  proprietors  are  not  affected  by  the 
provisions  of  this  title."  The  court  held  that: 

Section  1422  of  the  Civil  Code  is  protective,  not  only  of 
riparian  rights  existing  when  the  Code  was  adopted,  but  also 
of  the  riparian  rights  of  those  who  acquired  a  title  to  land  from 
the  State,  after  the  adoption  of  the  Code  and  before  an  appro- 
priation of  water  in  accordance  with  the  Code  provisions. 


RIPARIAN   RIGHTS  21 

Neither  a  grantee  of  the  United  States  nor  the  grantee  of  a 
private  person,  who  was  a  riparian  owner  when  the  Code  was 
adopted,  need  rely  for  protection  on  Section  1422.  Such  per- 
sons are  protected  by  constitutional  principles. 

At  the  first  legislative  session  (1887)  after  the 
decision  of  Lux  v.  Haggin,  section  1422  was  repealed 
with  the  proviso  "that  the  repeal  of  this  section  shall 
not  in  any  way  interfere  with  any  right  already 
vested."  This  repeal  opened  the  way  for  a  new  at- 
tack upon  the  riparian  doctrine  but  no  serious  attempt 
has  been  made.  If  the  California  Supreme  Court 
could  be  induced  to  accept  the  ruling  of  the  Nebraska 
Supreme  Court  in  Crawford  v.  Hathaway,  the  riparian 
right  would  be  considered  abrogated  for  all  public 
land  not  entered  in  1887. 

The  Congressional  Desert  Land  Act  of  March  3, 
1877,  contains  the  following  language  in  one  of  its 
provisos : 

And  all  surplus  water  over  and  above  such  actual  appropri- 
ation and  use,  together  with  the  water  of  all  lakes,  rivers  and 
other  sources  of  water  supply  upon  the  public  lands  and  not 
navigable,  shall  remain  and  be  held  free  for  the  appropriation 
and  use  of  the  public  for  irrigation,  mining,  and  manufacturing 
purposes  subject  to  existing  rights  *  *  * 

This  language  was  construed  by  the  Supreme 
Court  of  Oregon  in  the  recent  case  of  Hough  v.  Porter 
(51  Ore.  318)  decided  January  5,  1909,  as  follows: 

Construed,  then,  with  the  act  of  1866  and  other  provisions 
of  the  act  of  1877,  we  are  of  the  opinion  that  all  lands  settled 
upon  after  the  date  of  the  latter  act  were  accepted  with  the  im- 
plied understanding  that  (except  as  to  water  for  domestic  pur- 
poses) the  first  to  appropriate  and  use  the  water  for  the  purpose 
specified  in  the  act  should  have  the  superior  right  thereto. 

Hough  v.  Porter  was  referred  to  by  the  United 
State  Supreme  Court  in  Boquillas  Cattle  Company  v. 
Curtis  (213  U.  S.  339)  decided  April  19,  1909.  The 
case  involved  a  conflict  between  a  riparian  owner  and 
an  appropriator  and  the  Court  after  stating  that  the 
riparian  doctrine  was  not  applicable  in  Arizona,  con- 
tinued : 

The  opinion  that  we  have  expressed  makes  it  unnecessary 
to  decide  whether  land  in  the  arid  regions  patented  after  the 


22  WESTERN   WATER   LAW 

act  of  March  3,  1877  *  *  *  are  not  accepted  subject 
to  the  rule  that  priority  of  appropriation  gives  priority  of  right 
by  virtue  of  that  act  construed  with  Rev.  Stat.  2339.  The  Su- 
preme Court  of  Oregon  has  rendered  a  decision  to  that  effect 
on  plausible  grounds. 

The  Supreme  Court  of  Washington,  however,  has 
refused  to  consider  the  Hough  v.  Porter  rule,  suffi- 
ciently "plausible"  to  follow.  In  Still  v.  Palouse 
Irrigation  &  Power  Co.  (117  Pac.  466)  decided  Au- 
gust 19,  1911,  the  Court  had  before  it  a  case  somewhat 
similar  to  Miller  &  Lux  v.  Madera  Canal  Co.,  except 
that  the  defendant  company  attempting  storage  was 
also  a  riparian  owner.  The  company  contended  for 
the  rule  laid  down  in  Hough  v.  Porter,  but  the  court 
held  that  "the  act  itself  manifestly  relates  only  to  the 
reclamation  of  desert  lands"  and  refused  to  apply  the 
rule  as  the  lands  involved  had  not  been  entered  under 
the  Desert  Land  Act.  As  noted  above  the  Oregon 
Supreme  Court  held  that  the  rule  applied  to  all  public 
land,  which  should  be  the  construction  if  the  decision 
were  rendered  on  "plausible  grounds."  The  Supreme 
Courts  of  California,  Montana,  North  Dakota  and 
South  Dakota  (the  remaining  riparian  right  States  to 
which  the  Desert  Land  Act  applies)  have  not  as  yet 
been  asked  to  accept  the  rule  of  Hough  v.  Porter  and 
their  position  is  therefore  still  doubtful. 
Lateral  Limits. 

It  has  been  shown  previously  that  an  appro- 
priator  can  neither  divert  nor  store  flood  waters 
when  such  might  result  in  damage,  present  or  pros- 
pective, to  a  riparian  owner.  Any  large  project,  to  pro- 
tect itself,  must  therefore  purchase  the  riparian  land  or 
the  riparian  right  annexed  thereto — it  being  well  set- 
tled that  the  riparian  right  may  be  sold  apart  from 
the  land. 

The  generally  accepted  lateral  limit  of  riparian 
land  is  the  margin  of  the  water  shed.  The  Supreme 
Court  of  Oregon,  however,  in  Jones  v.  Conn  (39  Ore. 
30)  has  held  that  riparian  lands  are  not  so  limited  but 
extend  to  the  exterior  boundaries  regardless  of  the 
watershed. 


RIPARIAN   RIGHTS  23 

It  is  the  only  State  wherein  a  riparian  owner,  under 
the  claim  of  riparian  right,  may  divert  the  water  of 
a  stream  beyond  its  watershed."""  The  general  rule  is 
based  on  the  idea  that  only  those  lands  which  border 
on  and  drain  into  a  stream  can  be  considered  riparian 
thereto. 

In  two  cases  the  California  Supreme  Court  has 
materially  restricted  the  lateral  limits  as  shown  by 
the  following  quotations. 

In  the  case  at  bar  the  stipulation  is  that  these  fourteen  quar- 
ter sections  were  granted  each  by  a  separate  patent,  each  patent 
being  based  upon  a  separate  entry,  and  these  fourteen  quarter 
sections  therefore  constitute  fourteen  distinct  tracts  of  land,  and 
mere  contiguity  cannot  extend  a  riparian  right  which  is  appur- 
tenant to  one  quarter  section  to  another,  though  both  are  now 
owned  by  the  same  person.  Boehmer  v.  Big  Rock  Irr.  Dist. 
117  Cal.  27. 

If  the  owner  of  a  tract  abutting  on  a  stream  conveys  to  an- 
other a  part  of  the  land  not  contiguous  to  the  stream,  he  there- 
by cuts  off  the  part  so  conveyed  from  all  participation  in  the 
use  of  the  stream  and  from  riparian  rights  therein,  unless  the 
conveyance  declares  the  contrary.  Land  thus  conveyed  and 
severed  from  the  stream  can  never  regain  the  riparian  right, 
although  it  may  thereafter  be  reconveyed  to  the  person  who 
owns  the  part  abutting  on  the  stream,  so  that  the  two  tracts  are 
again  held  in  one  ownership.  Anaheim  Union  Water  Co.  v. 
Fuller,  150  Cal.  331. 

As  later  decisions  have  not  modified  the  above 
rulings,  they  may  be  considered  accepted  in  Califor- 
nia. The  Nebraska  Supreme  Court  in  Crawford  v. 
Hathaway  considered  this  question  at  great  length  and 
concluded : 

A  riparian  owner's  right  to  the  reasonable  use  of  water  ex- 
ists solely  by  virtue  of  his  ownership  of  the  lands  over  or  by 
which  the  stream  flows.  It  is  obvious  that  his  right  cannot  be 
enlarged  or  extended  by  acquisition  of  title  to  lands  contiguous 
to  the  riparian  land;  nor  can  a  riparian  owner,  as  such,  right- 
fully divert  to  non-riparian  lands  water  which  he  has  a  right 
to  use  on  riparian  land,  but  which  he  does  not  so  use  *  *  * 
It  being  the  policy  of  the  government  to  dispose  of  its  public 
domain  in  tracts  of  not  less  than  40  acres  each,  why,  then, 
may  it  not  be  said  that  riparian  rights  are  limited  to  such  tracts, 
even  though  several  of  them  may  be  joined  together  in  one 


24  WESTERN   WATER   LAW 

certificate  of  purchase  or  instrument  of  conveyance?  It  is  not 
decided  that  such  should  be  the  rule  in  this  State,  as  it  is  deemed 
preferable  to  leave  the  question  open  for  maturer  investigation 
and  consideration. 

The  Supreme  Court  of  Texas  in  Watkins  Land 
Co.  v.  Clements  (86  S.  W.  733)  decided  April  24,  1905, 
held  that  riparian  rights  "cannot  extend  beyond  the 
original  survey  as  granted  by  the  government." 

Were  it  not  for  the  recent  cases  wherein  lower 
riparian  owners  (on  a  showing  of  possible  damage) 
have  been  allowed  to  stop  the  storage  of  flood  waters 
by  either  riparian  owners  or  appropriators,  those  in- 
terested only  in  power  development  might  be  strongly 
in  favor  of  the  riparian  doctrine.  Under  it  they  can 
demand  that  the  waters  be  allowed  to  flow  to  even 
the  mouth  of  the  stream  if  a  power  site  there  exists. 
The  lower  sites,  however,  are  exceptional,  and  as 
present  day  developments  necessitate  storage,  pros- 
pective power  plants  are  as  materially  affected  by  the 
flood  water  decisions  as  irrigation  projects.  If  the 
riparian  doctrine  must  continue  in  force  in  so  many 
western  States,  some  relief  can  be  secured  by  inducing 
the  courts  to  further  restrict  the  lateral  limits.  A 
general  acceptance  of  the  suggestion  of  the  Nebraska 
Supreme  Court  that  riparian  rights  be  limited  to  forty 
acre  tracts  would  lessen  the  difficulties  in  the  way  of 
the  newer  and  larger  projects. 

The  forty  acre  suggestion  applies,  of  course,  to 
public  lands  only.  In  California  there  are  a  great 
number  of  large  Spanish  grants,  each  of  which  must 
be  considered  a  single  parcel,  and  to  such  the  sug- 
gestion would  not  apply.  As  those  grants  often  ex- 
tend from  watershed  to  watershed,  they  contain  large 
areas  riparian  to  streams  crossing  them.  While  such 
a  grant  remains  in  a  single  ownership,  the  proprietor 
thereof,  under  the  decisions  cited,  practically  controls 
the  streams  as  far  as  appropriators  are  concerned. 

In  the  quotation  from  Anaheim  Union  Water 
Company  v.  Fuller,  above,  it  is  stated  that  in  a  par- 
tition of  a  riparian  tract  the  part  distant  from  the 


RIPARIAN   RIGHTS  25 

stream  loses  its  riparian  right  "unless  the  conveyance 
declares  the  contrary."  A  number  of  Spanish  grants 
crossed  by  streams  are  now  being  subdivided,  and 
the  deeds  are  so  drawn  that  the  various  parcels  share 
in  the  riparian  right,  regardless  of  proximity  to  the 
stream.  It  is  well  settled  that  the  parcels  so  conveyed 
retain  the  riparian  right  among  themselves,  but  the 
western  courts  have  not  yet  directly  passed  upon 
the  question  as  to  whether  the  owner  of  such  a  parcel 
not  touching  the  stream  can  be  considered  to  possess 
a  riparian  right  as  against  an  appropriator  or  riparian 
owner  outside  the  original  grant.  Mr.  Wiel,  in  the 
third  edition  of  his  splendid  work  on  "Water  Rights 
in  the  Western  States,"  raises  this  question  and  after 
an  exhaustive  study  of  the  cases  bearing  on  the  point, 
concludes  that  such  parcels  not  bordering  upon  the 
stream  cannot  be  considered  riparian  when  in  con- 
flict with  rights  outside  of  the  grant.  The  conclusion 
is  certainly  based  on  sound  reasoning  and  conforms 
to  the  basic  idea  that  only  lands  bordering  upon  a 
stream  are  riparian  thereto.  This  question  will  un- 
doubtedly be  raised  in  the  near  future  and  the  hope  of 
all  appropriators  is  that  the  courts  will  accept  Mr. 
Wiel's  conclusion. 

In  those  instances  where  the  land  along  the  stream 
below  a  reservoir  site  was  secured  under  the  public 
land  laws,  the  maximum  limits  of  riparian  lands  (in 
California,  Nebraska  and  Texas — the  public  lands  in 
the  last  being  State  lands  only)  may  be  determined 
by  an  examination  of  the  land  office  records,  as  only 
those  forties  which  touch  the  stream  or  were  included 
with  such  forties  in  the  original  patent  can  be  con- 
sidered riparian.  Where  the  stream  passes  through 
lands  which  were  part  of  a  Spanish  grant  in  Califor- 
nia, abstracts  of  title  must  be  examined  in  order  to 
ascertain  the  least  parcel  touching  the  stream  at  one 
time  in  a  single  ownership.  In  the  riparian  States, 
other  than  California,  Nebraska  and  Texas,  the  ordi- 
nary assessor's  map  showing  ownership  along  the 
streams  will  give  the  riparian  lands — they  being  those 


26  WESTERN   WATER   LAW 

tracts  in  single  ownership  not  extending  beyond  the 
watershed.  The  last  statement  must  be  modified  for 
Oregon,  as  there  the  riparian  land  is  not  limited  to  the 
watershed. 

Riparian  Right  Restricted  to  Riparian  Land. 
On  account  of  the  riparian  right  being  so  superior 
(in  the  riparian  right  States)  to  that  of  appropriation, 
there  is  a  popular  idea  that  a  riparian  proprietor  ac- 
tually owns  the  water  and  is  not  limited  to  its  use  on 
his  riparian  land.  The  courts,  however,  have  consist- 
ently held  to  the  contrary,  as  illustrated  by  the  second 
quotation  from  Crawford  v.  Hathaway  above.  Of 
the  many  cases  thus  holding,  one  presenting  unusual 
conditions  is  Duckworth  v.  Watsonville  Water  & 
Light  Company,  (150  Cal.  520). 

The  Watsonville  Company,  in  order  to  protect  its 
diversion  of  the  waters  of  Pinto  Lake  to  Watsonville, 
had  purchased  either  the  riparian  land  or  the  riparian 
right  for  all  the  lands  bordering  on  the  lake.  Duck- 
worth leased  a  parcel  of  such  riparian  land,  posted  a 
notice  of  appropriation,  initiated  his  diversion  work 
and  brought  an  action  to  have  his  water  right  deter- 
mined as  against  the  company.  The  company  claimed 
that  by  the  purchase  of  the  riparian  lands  and  the 
riparian  rights,  including  those  annexed  to  the  parcel 
occupied  by  Duckworth,  it  was  entitled  to  all  of  the 
waters  of  the  lake.  The  following  extract  from  the 
opinion,  clearly  presents  the  court's  view: 

We  have  said  that  the  water  company  is  entitled  to  a  judg- 
ment protecting  its  riparian  right,  although  it  has  not  used, 
and  does  not  immediately  propose  to  use,  the  water  on  its 
riparian  land.  This  rule  does  not  apply  to  any  right  which  it 
has  acquired  by  appropriation  or  use  upon  other  lands,  and 
this  appears  to  be  the  source  of  the  right  which  it  has  been  ex- 
ercising. Such  right  depends  upon  use  and  ceases  with  disuse. 
(Civ.  Code,  1411).  It  extends  only  to  the  water  actually  taken 
and  used.  The  consequence  is  that,  so  far  as  the  protection  of 
this  right  and  the  water  necessary  to  supply  this  use  are  con- 
cerned, the  water  company  is  not  entitled  to  prevent  an  appro- 
priation or  use  by  others  of  the  surplus  of  waters  of  the  lake, 
if  there  is  any. 


RIPARIAN    RIGHTS  27 

Attention  has  been  called  to  language  used  by  the 
Nevada  Supreme  Court  in  Van  Sickle  v.  Haines,  and 
by  the  California  Supreme  Court  in  Lux  v.  Haggin, 
which  characterized  the  doctrine  of  appropriation  as 
one  certain  to  result  in  monopoly.  The  passage  quoted 
immediately  above  tells  another  story. 

Summary  of  Principles. 

The  riparian  doctrine  has  been  abrogated  in  the 
seven  strictly  arid  States  and  has  been  adopted  in  the 
ten  semi-humid  States  of  the  irrigation  zone.  Of  the 
ten,  it  has  been  held  in  Nebraska  that  the  State  water 
appropriation  act  annulled  the  riparian  rights  for 
public  lands  then  unentered,  and  in  Oregon  that  the 
congressional  desert  land  act  did  likewise. 

The  doctrine  restricts  the  right  to  riparian  lands 
and  allows  a  reasonable  use  of  water  to  all  riparian 
owners,  the  measure  of  which  will  depend  upon  the 
conditions  of  the  particular  case.  The  right  is  not 
created  by  use  and  does  not  cease  with  disuse.  As 
between  a  riparian  owner  and  an  appropriator,  the  for- 
mer is  not  limited  by  any  measure  of  reasonableness, 
and  may  restrain  any  diversion  or  interference  with  , 
the  flow  (including  flood  waters)  by  the  latter  which 
may  result  in  damage  to  his  riparian  land. 

Except  in  Oregon,  riparian  lands  are  limited  to 

/  the   watershed.     In   California,   Nebraska   and  Texas 

the  right  is  further  limited  to  the  original  tract  granted 

'    by  the  government,  and  in  California  still  further  lim- 

\  ited   to   the   smallest   tract   at  one   time   in   a   single 

\ownership. 

It  is  not  improbable  that  the  lateral  limits  may  be 
ultimately  limited  in  some  States  to  the  forty  acre 
tract  crossed  by  the  stream,  and  that  other  States  may 
follow  Nebraska  and  Oregon  in  their  construction  of 
state  and  federal  statutes.  It  is  certain,  however, 
that  statutes  annulling  riparian  rights  existing  prior  to 
their  passage  are  clearly  unconstitutional.  All  such 
changes  in  the  doctrine  must  be  made  by  the  courts 
and  not  the  legislatures. 


CHAPTER  III. 

THE  LAW  OF  UNDERGROUND  WATERS. 

According  to  the  Thirteenth  Census  the  source 
of  water  supply  for  433,630  acres  of  the  total  of  13,- 
739,500  acres  irrigated  in  1909  in  the  Western  States 
was  wells.  Of  this  area  332,410  acres  were  irrigated 
from  wells  in  California,  for  which  the  total  was  2,664,- 
100  acres.  Although  the  area  so  irrigated  is  but  a 
small  percentage  of  the  total,  it  is  constantly  increas- 
ing. The  surface  supply  is  being  rapidly  exhausted 
and  future  development  in  certain  sections  must  rest 
entirely  upon  the  underground  supply.  This  fact  is 
so  well  recognized  in  California  that  the  larger  power 
companies  have  initiated  a  campaign  of  education  to 
interest  farmers  in  the  use  of  electric  power  for  pump- 
ing. They  have  installed  a  working  exhibit  on  the 
University  of  California  demonstration  train  and  keep 
an  expert  in  attendance  to  explain  the  operation  of 
motors  and  pumps.  The  gas  engine  and  pump  manu- 
facturers are  equally  interested  and  through  their  cat- 
alogues are  making  an  effective  argument  for  the  in- 
troduction of  pumping  plants  for  irrigation. 

There  are  two  classes  of  natural  underground 
waters — percolating  waters  and  those  that  flow  in  a 
defined  subterranean  channel.  Percolating  waters 
have  been  well  designated  "vagrant,  wandering 
drops  moving  by  gravity  in  any  and  every  direction 
along  the  line  of  least  resistance." 

Illustrations  of  underground  waters  moving  in 
a  defined  channel  are  very  familiar,  and  the  so-called 

28 


UNDERGROUND   WATERS  29 

"sub-flow"  of  streams  is  especially  common.  In  the 
previous  chapter  the  recent  case  of  Miller  v.  Bay  Cities 
Water  Company  was  considered  at  some  length. 
Although  the  court  therein  discusses  the  California 
cases  on  percolating  waters,  Miller's  source  of  supply 
was  clearly  a  "subterranean  channel,"  and  his  right 
the  same  as  that  of  a  riparian  owner  on  a  surface 
stream.  Waters  in  subterranean  channels  have  always 
been  considered  subject  to  the  same  legal  principles 
as  the  waters  of  surface  streams.  In  most  jurisdic- 
tions underground  waters  are  presumed  to  be  perco- 
lating and  the  burden  of  proving  the  existence  of  a 
known  and  defined  channel  is  on  the  one  so  asserting. 
The  common  law  rule  is  that  percolating  waters 
belong  to  the  owner  of  the  surface  and  such  rule  is 
generally  accepted  except  as  later  stated  in  this  chap- 
ter. An  early  California  case — Hanson  v.  McCue 
(42  Cal.  303) —  adopts  the  rule  in  the  following  lan- 
guage. 

Water  filtrating  or  percolating  in  the  soil  belongs  to  the 
owner  of  the  freehold — like  rocks  and  minerals  found  there.  It 
exists  there  free  from  the  usufructory  right  of  others,  which  is 
to  be  respected  by  the  owner  of  an  estate  through  which  a  de- 
fined stream  of  water  is  found  to  flow.  The  owner  may  appro- 
priate the  percolation  and  filtrations  as  he  may  choose,  and 
turn  them  to  profit  if  he  can. 

It  must  be  appreciated  that  the  task  of  showing 
the  difference  between  the  two  classes  of  underground 
waters  in  a  given  case  is  very  difficult.  It  means 
the  introduction  of  much  expert  testimony  with  the 
usual  conflict  in  scientific  views.  An  excellent  illus- 
tration is  the  pioneer  case  of  Los  Angeles  v.  Pomeroy 
(124  Cal.  597)  wherein  the  city  sought  to  condemn 
land  in  the  San  Fernando  Valley  for  use  in  connection 
with  its  water  supply  system  from  the  Los  Angeles 
River.  The  city  contended  that  the  waters  under  the 
surface  of  the  tract  in  question  composed  the  subter- 
ranean flow  of  the  Los  Angeles  River  and  therefore 
belonged  to  it  under  its  "pueblo  right" — a  right  under 
the  Mexican  law  giving  the  pueblo  paramount  interest 
in  the  waters  of  streams.  Pomeroy  claimed  that  such 


30  WESTERN   WATER   LAW 

waters  were  but  percolating  waters  and  therefore  be- 
longed to  him  as  owner  of  the  soil.  Very  elaborate 
models  and  relief  maps  were  introduced  in  connection 
with  the  expert  testimony  on  each  side  and  the  court 
finally  decided  that  the  evidence  showed  the  existence 
of  a  well  defined  channel  and  that  the  underground 
waters  were  therefore  part  of  the  flow  of  the  Los 
Angeles  River  and  not  percolating  waters. 

California  is  the  only  Western  State  which  has 
thus  far  departed  from  the  common  law  rule  of  per- 
colating waters.  In  the  now  celebrated  case  of  Katz 
y.  Walkinshaw  (141  Cal.  116)  the  plaintiffs  sought 
"to  enjoin  defendant  from  drawing  off  and  diverting 
water  from  an  artesian  belt,  which  is  in  part  on  or 
under  the  premises  of  plaintiffs,  and  to  the  water  of 
which  they  have  sunk  wells"  for  water  for  domestic 
purposes  and  for  irrigating  their  lands  overlying  the 
artesian  water.  The  defendant  diverted  "the  water 
for  sale,  to  be  used  on  lands  of  others  distant  from 
the  saturated  belt."  The  plaintiffs  contended  that  the 
subsurface  water  constituted  an  underground  stream 
and  that  they  were  riparian  thereto.  The  defendant 
on  the  contrary  alleged  that  the  water  rising  in  her 
Avells  was  percolating  water  and  therefore  her  prop- 
erty. The  original  opinion  of  the  Supreme  Court  in 
the  case,  written  by  Mr.  Justice  Temple,  was  handed 
down  November  7,  1902.  The  court  therein  held  that 
the  artesian  body  was  percolating  water  and  not  an 
underground  water  course  to  which  riparian  rights 
could  attach.  Instead  of  holding,  as  the  lower  court 
had  done,  that  the  defendant  could  not  be  enjoined, 
the  Supreme  Court  after  citing  the  authorities  and 
dwelling  on  the  difference  in  conditions  "in  a  coun- 
try like  Southern  California,  where  the  relative  im- 
portance of  percolating  water  and  water  flowing  in 
definite  water  courses  is  greatly  changed,"  concluded 
that  a  different  rule  was  required  and  established  the 
new  rule  of  reasonable  use. 

A  rehearing  was  granted  in  order  that  additional 
arguments  might  be  presented  by  those  "not  parties  to 


UNDERGROUND   WATERS  31 

the  action,  but  vitally  interested  in  the  principle  in- 
volved," and  the  final  opinion,  written  by  Mr.  Justice 
Shaw,  was  handed  down  on  November  28,  1903.  The 
opinion  is  very  important  on  account  of  its  treatment 
of  the  common  law,  in  addition  to  the  modification 
of  the  law  of  percolating  waters,  as  shown  by  the  fol- 
lowing extract : 

The  idea  that  the  doctrine  contended  for  by  the  defendant 
is  a  part  of  the  common  law  adopted  by  our  statute,  and  be- 
yond the  power  of  the  court  to  change  or  modify,  is  founded 
upon  the  misconception  of  the  extent  to  which  the  common  law 
is  adopted  by  such  statutory  provisions,  and  a  failure  to  ob- 
serve some  of  the  rules  and  principles  of  the  common  law 
itself.  In  Crandall  v.  Woods,  8  Cal.  143,  the  court  approved  the 
following  rule,  quoting  from  the  dissenting  opinion  of  Bronson, 
J.,  in  Starr  v.  Child,  20  Wend.  149:  "I  think  no  doctrine  bet- 
ter settled  than  that  such  portions  of  the  law  of  England  as  are 
not  adapted  to  our  condition  form  no  part  of  the  law  of  this 
State.  This  exception  includes  not  only  such  laws  as  are  incon- 
sistent with  the  spirit  of  our  institutions,  but  such  as  are  framed 
with  special  reference  to  the  physical  condition  of  a  country  dif- 
fering widely  from  our  own.  It  is  contrary  to  the  spirit  of  the 
common  law  itself  to  apply  a  rule  founded  on  a  particular  reason 
to  a  case  where  that  reason  utterly  fails." 

(It  is  a  noteworthy  point  that  the  language  of 
Mr.  Justice  Bronson  quoted  by  Mr.  Justice  Shaw,  was 
also  quoted  by  Mr.  Justice  Ross  in  his  dissenting 
opinion  in  Lux  v.  Haggin,  wherein  he  argued  that 
the  common  law  rule  of  riparian  rights,  being  unsuited 
to  the  existing  conditions,  should  be  rejected  in  Cali- 
fornia.) 

After  other  forcible  statements  in  regard  to  the 
adaptability  and  power  of  modification  of  the  common 
law,  the  opinion  describes  at  considerable  length  the 
semi-arid  conditions  existing  in  a  large  part  of  Cali- 
fornia ("in  almost  all  of  the  southern  half  of  it"),  the 
insufficiency  of  the  natural  streams  as  sources  of  irri- 
gation supply,  and  the  absolute  need  of  the  utilization 
of  the  underground  waters.  Following  the  statement 
that  "The  claim  that  the  doctrine  stated  by  Mr.  Jus- 
tice Temple  is  contrary  to  all  the  decisions  of  this 
court  is  not  sustained  by  an  examination  of  the  cases," 


32  WESTERN   WATER   LAW 

it  proceeds  to  analyze  the  former  California  cases  sup- 
posedly upholding  the  common  law  rule  of  percolat- 
ing waters,  beginning  with  Hanson  v.  McCue,  and 
concludes  : 

In  view  of  this  conflicting  and  uncertain  condition  of  the 
authorities  it  cannot  be  successfully  claimed  that  the  doctrine 
of  absolute  ownership  is  well  established  in  this  State.  It  is 
proper  to  state  that  in  all  the  opinions  which  have  so  readily 
quoted  and  approved  the  supposed  common-law  rule,  that  in- 
juries from  interference  with  percolating  waters  were  too  ob- 
scure in  origin  and  cause,  too  trifling  in  extent,  and  relatively 
of  too  little  importance,  as  compared  to  mining  industries  and 
the  wants  of  large  cities,  to  justify  or  require  the  recognition 
by  the  courts  of  any  correlative  rights  in  such  waters,  or  the 
redress  of  such  injuries,  there  has  been  no  notice  at  all  taken 
of  the  conditions  existing  here,  so  radically  opposite  to  those 
prevailing  where  the  doctrine  arose.  It  is  also  to  be  observed 
that  in  some  instances  in  the  Eastern  States,  mentioned  in  the 
former  opinion  in  this  case,  the  injustice  from  the  diversion  of 
percolating  waters  has  been  so  glaring  and  so  extensive  that 
the  court  there  was  compelled  to  depart  from  its  previously 
decided  cases  and  recognize  the  rights  of  adjoining  owners. 

The  new  rule  established  by  the  decision  is  well 
shown  in  the  following  paragraphs : 

In  controversies  between  an  appropriator  for  use  on  dis- 
tant land  and  those  who  own  land  overlying  the  water-bearing 
strata,  there  may  be  two  classes  of  such  land  owners:  those 
who  have  used  the  water  on  their  land  before  the  attempt  to 
appropriate,  and  those  who  have  not  previously  used  it,  but  who 
claim  the  right  afterward  to  do  so.  Under  the  decision  in  this 
case  the  rights  of  the  first  class  of  land  owners  are  paramount 
to  that  of  one  who  takes  the  water  to  distant  land;  but  the 
land  owner's  right  extends  only  to  the  quantity  of  water  that 
is  necessary  for  use  on  his  land,  and  the  appropriator  may  take 
the  surplus.  As  to  those  land  owners  who  begin  the  use  after 
the  appropriation,  and  who,  in  order  to  obtain  the  water,  must 
restrict  or  restrain  the  diversion  to  distant  lands  or  places,  it 
is  perhaps  best  not  to  state  a  positive  rule  until  a  case  arises. 
Such  rights  are  limited  at  most  to  the  quantity  necessary  for 
use,  and  the  disputes  will  not  be  so  serious  as  those  between 
rival  appropriators. 

Disputes  between  overlying  land  owners,  concerning  water 
for  use  on  the  land,  to  which  they  have  an  equal  right,  in  cases 
where  the  supply  is  insufficient  for  all,  are  to  be  settled  by  giv- 


UNDERGROUND   WATERS  33 

ing  to  each  a  fair  and  just  proportion.  And  here  again  we  leave 
for  future  settlement  the  question  as  to  the  priority  of  rights 
between  such  owners  who  begin  the  use  of  the  water  at  different 
times.  The  parties  interested  in  the  question  are  not  before  us. 

Katz  v.  Walkinshaw  has  been  consistently  fol- 
lowed in  all  subsequent  percolating  water  cases  aris- 
ing in  California.  As  far  as  the  establishment  of  fur- 
ther rules  is  concerned,  the  most  important  of  the  sub- 
sequent cases  is  Burr  v.  Maclay  Rancho  Water  Com- 
pany (154  Cal.  428)  decided  in  1908,  as  the  question 
left  undecided  in  Katz  v.  Walkinshaw  was  presented. 
The  plaintiff  therein  "sued  to  enjoin  the  defendant 
company  from  pumping  water  from  its  wells  on  land 
adjoining  that  of  plaintiff  and  transporting  such  water 
to  distant  lands  for  irrigation."  The  plaintiff's  land 
consists  of  three  tracts — blocks  153,  190  and  191  of 
the  Maclay  Rancho  Ex-Mission  San  Fernando.  The 
three  tracts  overly  the  body  of  percolating  water. 
Plaintiff's  wells  are  on  block  191  which  is  an  irrigated 
orchard.  For  a  short  time  part  of  block  190  was  also 
irrigated.  The  right  is  claimed  for  the  irrigation  of 
all  of  blocks  153  and  190  as  well  as  the  present  irri- 
gated block  191.  Defendant's  wells  are  on  block  192 
and  while  its  pumps  are  being  operated  "it  is  impos- 
sible for  the  plaintiff  to  obtain  any  water  from  his 
wells  by  means  of  his  pumps." 

In  the  consideration  of  the  case  the  Court  com- 
ments on  the  contrast  between  the  new  doctrine  of 
percolating  waters  and  the  rule  of  riparian  rights  in 
regard  to  true  conservation  as  follows : 

It  is  not  the  policy  of  the  law  to  permit  any  of  the  avail- 
able waters  of  the  country  to  remain  unused,  or  to  allow  one 
having  the  natural  advantage  of  a  situation  which  gives  him 
a  legal  right  to  water  to  prevent  another  from  using  it,  while 
he  himself  does  not  desire  to  do  so.  The  established  and  settled 
law  of  riparian  rights  in  running  streams,  which  have  become 
vested  rights,  may  compel  a  different  rule  with  regard  to  such 
waters  in  some  instances,  but  these  rules  of  law  do  not,  of 
necessity  control  rights  in  percolating  waters. 

Certain  headnotes  used  in  reporting  the  case  so 
v/ell  set  forth  the  principles  established  that  they  are 
quoted  in  full : 


34  WESTERN   WATER   LAW 

Different  owners  of  separate  tracts  of  land,  situated  over 
common  strata  of  percolating  water,  may,  each  upon  his  own 
lands,  take  by  means  of  wells  and  pumps  from  the  common 
strata,  such  quantity  of  water  as  may  be  reasonably  necessary 
for  beneficial  use  upon  his  land,  or  his  reasonable  proportion 
of  such  water,  if  there  is  not  enough  for  all;  but  one  cannot, 
to  the  injury  of  the  other,  take  such  waters  from  the  strata 
and  conduct  it  to  distant  lands  not  situated  over  the  same 
water-bearing  strata. 

As  between  an  appropriator  of  percolating  water  for  use  on 
distant  land,  and  an  owner  of  land  overlying  the  water-bearing 
strata,  who  was  using  the  water  on  his  land  before  the  attempt 
to  appropriate,  the  rights  of  the  overlying  landowner  are  para- 
mount. Such  rights,  however,  extend  only  to  the  quantity  of 
water  that  is  necessary  for  use  on  his  land,  and  the  appropri- 
ator may  take  the  surplus. 

After  an  appropriator  of  water  from  a  common  water- 
bearing strata  has  begun  to  take  water  therefrom  to  distant 
lands  not  situated  over  the  strata,  for  use  on  such  distant  lands, 
the  owner  of  other  overlying  land  upon  which  he  has  never 
used  the  water,  may  invoke  the  aid  of  a  court  of  equity  to  pro- 
tect him  in  his  right  to  thereafter  use  such  water  on  his  land, 
and  thus  prevent  the  appropriator  from  defeating  his  right,  or 
acquiring  a  paramount  right  by  adverse  use,  or  by  lapse  of 
time.  Such  an  appropriation  for  distant  lands  is  subject  to 
the  reasonable  use  of  the  water  on  lands  overlying  the  supply, 
particularly  in  the  case  of  persons  who  have  acquired  the  lands 
because  of  these  natural  advantages. 

As  against  the  owners  of  such  overlying  lands,  either  those 
who  have  used  the  water  on  their  lands  before  the  attempt  to  ap- 
propriate, or  those  who  have  not  previously  used  it,  but  who 
claim  the  right  afterwards  to  do  so,  the  appropriator  for  use 
on  distant  land  has  the  right  to  any  surplus  that  may  exist. 
If  the  adjoining  overlying  owner  does  not  use  the  water,  the 
'appropriator  may  take  all  the  regular  supply  to  distant  land  until 
such  landowner  is  prepared  to  use  it  and  begins  to  do  so. 

In  controversies  between  the  owners  of  such  overlying  lands, 
and  an  appropriator  of  the  water  for  use  on  distant  lands,  the 
court  has  the  power  to  make  reasonable  regulations  for  the  use 
of  the  water  by  the  respective  parties,  fixing  the  times  when 
each  may  take  it  and  the  quantity  to  be  taken,  provided  they 
be  adequate  to  protect  the  person  having  the  paramount  right 
in  the  substantial  enjoyment  of  that  right  and  to  prevent  its 
ultimate  destruction.  In  the  present  case  the  judgment  is 
directed  to  be  modified  in  accordance  with  these  rules. 


UNDERGROUND   WATERS  35 

Although  the  new  rule  of  percolating  waters  is 
now  so  firmly  established  in  California,  no  other 
Western  State  has  thus  far  adopted  it,  although  the 
tendency  seems  that  way.  The  Supreme  Court  of 
Idaho  in  Le  Quime  v.  Chambers  (98  Pac.  415)  dealing 
with  the  appropriation  of  spring  waters  commented 
on  the  establishment  of  the  new  rule  in  California, 
but,  as  it  considered  the  law  of  underground  waters 
not  necessary  to  the  case  before  it,  did  not  follow  it. 
The  Supreme  Court  of  New  Mexico  in  Vanderwork 
v.  Hewes  (110  Pac.  567)  treated  the  new  rule  in  the 
same  way.  as  the  Idaho  court.  The  Supreme  Court  of 
Colorado  in  Smith  Canal  v.  Colorado  Ice  Co.  (98  Pac. 
940)  after  referring  to  Katz  v.  Walkinshaw,  stated : 

The  law  regulating  ownership  of  percolating  waters  in  the 
arid  States  is  now  of  great — as  time  passes  it  will  be  still  greater 
— importance;  and,  until  a  proper  case  is  presented  calling  for 
it,  we  decline  to  announce  the  rule  applicable  to  our  local  con- 
ditions. 

As  stated  in  McClintock  v.  Hudson  (141  Cal.  275) 
the  new  rule  regarding  percolating  water  "makes  it 
to  a  great  extent  immaterial  whether  the  waters  in 
this  land  were  or  were  not  a  part  of  an  underground 
stream"  provided  the  withdrawal  of  such  waters  by 
defendant  can  be  shown  to  substantially  affect  the 
source  of  supply — well  or  stream — of  plaintiff.  The 
need  of  distinguishing  between  the  two  classes  of 
underground  waters  still  exists  in  all  the  Western 
States  except  California,  and  in  the  latter  the  problem 
of  proving  the  alleged  damage  to  a  source  of  supply 
remains  and  is  generally  a  difficult  one. 

Contrast  of  the  California  Rules  of  Percolating  Waters 
and  of  Riparian  Rights. 

The  owner  of  land  overlying  a  body  of  percolating 
water  corresponds  to  a  riparian  owner  on  a  surface 
stream,  and  an  appropriator  of  percolating  waters  for 
use  on  distant  lands  (that  is,  not  overlying)  corres- 
ponds to  an  appropriator  of  surface  waters  for  use 
on  non-riparian  lands.  Under  the  rule  of  riparian 
rights  the  riparian  owner  may  perpetually  enjoin  the 


36  WESTERN   WATER   LAW 

diversion  or  storage  of  the  waters  of  a  stream  when 
such  diversion  is  or  may  be  of  injury  to  him ;  and  in 
the  consideration  of  the  question  of  probable  damages 
the  riparian  owner  cannot  be  restricted  to  a  reason- 
able use.  Under  the  new  rule  of  percolating  waters 
the  times  and  amounts  of  use  by  overlying  owner 
and  appropriator  may  be  fixed  by  the  Court  so  that 
the  overlying  owner  will  have  the  first  use  of  a  rea- 
sonable amount  for  his  overlying  land  and  the  appro- 
priator the  surplus  for  the  distant  land;  and  in  cases 
of  present  non-use  by  the  overlying  owner,  the  appro- 
priator will  be  allowed  to  withdraw  the  water  until 
the  former  is  ready  to  use  it.  In  brief,  the  new  rule 
of  percolating  waters  allows  the  widest  possible  use 
of  the  source  of  supply,  while  the  rule  of  riparian  rights 
results  in  waste.  It  is  rather  paradoxical  to  have  the 
sub-surface  supply,  which  is  naturally  conserved  in 
the  underground  reservoirs,  regulated  by  a  wise  rule, 
while  the  surface  supply,  which  unless  artificially 
stored  or  reasonably  used  must  run  to  waste,  remains 
unregulated. 

In  the  previous  chapter  it  was  stated  that  the  case 
of  Lux  v.  Haggin  fixed  the  modified  doctrine  of  riparian 
rights  in  California  seemingly  for  all  time.  This  was 
so  written  as  the  general  view,  even  among  those 
strenuously  opposed  to  the  doctrine,  is  that  the  Su- 
preme Court  of  California  could  not  seriously  con- 
sider the  abrogation  of  the  doctrine  on  account  of  the 
extensive  rights  which  have  been  recognized  as  vested 
by  the  long  line  of  decisions  following  the  lead  of  Lux 
v.  Haggin.  It  is  believed,  however,  that  the  riparian 
rights  of  consequence  to  single  proprietors  belong  to 
the  Spanish  grants;  that  the  most  of  these  have  been 
long  irrigated  and  therefore  fully  protected  under  the 
doctrine  of  appropriation;  and  that  those  that  remain 
are  being  or  will  be  subdivided  into  small  tracts,  com- 
paratively few  of  which  will  retain  the  riparian  right, 
and  which  will  therefore  be  better  served  by  the  doc- 
trine of  appropriation.  There  remain  in  addition  to 
the  grants  the  public  land  subdivisions  immediately 


UNDERGROUND   WATERS  37 

touched  or  crossed  by  the  streams,  and  which  lie  in 
such  narrow  strips  that  usually  no  feasible  irriga- 
tion scheme  can  be  made  to  include  them  without 
including  non-riparian  lands  also — that  is,  without 
resting  on  the  doctrine  of  appropriation.  The  abro- 
gation of  the  riparian  rule  would  therefore  not  mate- 
rially injure  single  proprietors,  the  aggregate  of  whose 
holdings  now  seriously  retards  the  promotion  of  stor- 
age works. 

Lux  v.  Haggin  fixed  the  rule  of  riparian  rights  for 
the  reason  that  California  had  adopted  the  common 
law  and  that  it  was  the  doctrine  of  the  common  law. 
Katz  v.  Walkinshaw  rejected  the  common  law  rule 
of  percolating  waters  as  uhsuited  to  the  conditions 
existing  in  California. 

The  court  in  Lux  v.  Haggin  undoubtedly  con- 
sidered the  riparian  rule  the  best  for  the  interests  of 
the  State,  and  looked  upon  the  doctrine  of  appropria- 
tion as  one  certain  to  result  in  monopolies  of  the 
water  supply.  The  present  day  view  of  this  latter 
doctrine  will  be  presented  in  the  next  chapter,  and, 
it  is  believed,  the  "monopolistic"  idea  will  be  shown 
to  be  untenable. 


CHAPTER  IV. 
THE  DOCTRINE  OF  APPROPRIATION. 

Most  of  the  Western  States  have  adopted  statutes 
which  place  the  control  of  water  appropriations  in 
the  office  of  the  State  Engineer.  In  all  but  a  few, 
such  statutes  were  but  recently  adopted  so  that  the 
great  mass  of  water  rights  resting  on  the  doctrine 
of  appropriation  must  be  defined  by  the  principles  laid 
down  from  time  to  time  by  the  courts.  In  the  first 
chapter  it  was  stated  that  the  California  statutes  (Sec- 
tions 1410  to  1422  of  the  Civil  Code)  were  but  de- 
claratory of  existing  law  (established  by  the  courts). 
Similar  statutes  were  first  adopted  in  the  other  West- 
ern States  and  the  court  rulings  throughout  differ  but 
little. 

Appropriations  Not  Restricted  to  Public  Lands. 

The  statement  is  generally  made  by  those  advo- 
cating the  riparian  doctrine  that  appropriations  (in 
riparian  right  States)  can  only  be  made  on  the  pub- 
lic lands  and  this  view  is  somewhat  sanctioned  by 
earlier  California  decisions.  In  Duckworth  v.  Wat- 
sonville  (150  Cal.  520)  the  rule  is  positively  stated  as 
follows : 

The  right  to  appropriate  water  under  the  provisions  of  the 
Civil  Code  is  not  confined  to  streams  running  over  public  lands 
of  the  United  States.  It  exists  wherever  the  appropriator  can 
find  water  of  a  stream  which  has  not  been  appropriated  and  in  / 
which  no  other  person  has  or  claims  superior  rights  and  inter- 
ests. 


DOCTRINE    OF  APPROPRIATION  39 

The  above  does  not  mean  that  one  may  trespass 
upon  private  property  and  make  a  diversion.  The 
right  of  way  for  the  ditch  or  conduit  must,  of  course, 
be  secured  from  the  owner  of  the  riparian  land. 

In  regard  to  appropriations  and  use  on  public 
lands  not  subject  to  entry  it  has  been  recently  held  by 
the  Supreme  Court  of  Washington  in  Avery  v.  John- 
son (109  Pac.  1028)  that  no  such  right  "can  be  ac- 
quired by  one  illegally  occupying  land  in  an  Indian 
reservation,  prior  to  the  opening  of  the  reservation  to 
settlement  under  the  homestead  law." 

Waters  Open  to  Appropriation. 

The  statutes  governing  appropriations  refer  to  the 
waters  subject  thereto  as  "running  water  flowing  in 
a  river  or  stream,"  "natural  watercourses,"  "all 
waters,"  or  use  other  expressions  of  the  same  nature, 
and  a  few  enumerate  in  addition  "lakes"  and  "springs." 
The  courts  treat  the  waters  of  a  "natural  watercourse" 
as  being  open  to  appropriation  and  a  definition  often 
quoted  is  the  following,  from  Los  Angeles,  etc.  v.  Los 
Angeles  (103  Cal.  466). 

There  must  be  a  stream,  usually  flowing  in  a  particular  direc- 
tion, though  it  need  not  flow  continually.  It  may  sometimes  be 
dry.  It  must  flow  in  a  definite  channel,,  having  a  bed  or  banks, 
and  usually  discharge  itself  into  some  other  stream  or  body 
of  water.  It  must  be  something  more  than  a  mere  surface 
drainage  over  the  entire  face  of  the  tract  of  land,  occasioned 
by  unusual  freshets  or  other  extraordinary  causes.  It  does  not 
include  the  water  flowing  in  the  hollows  or  ravines  in  land, 
which  is  mere  surface  water  from  rain  or  melting  snow  (i.e., 
snow  lying  and  melting  on  the  land),  and  is  discharged  through 
them  from  a  higher  to  a  lower  level,  but  which  at  other  times 
are  destitute  of  water.  Such  hollows  or  ravines  are  not,  in  legal 
contemplation,  watercourses. 

The  statement  that  all  waters  of  natural  water- 
courses may  be  appropriated  must  be  qualified  in 
the  case  of  navigable  streams.  In  Miller  v.  Enterprise 
Company  (142  Cal.  178)  the  plaintiff  sought  to  enjoin 
the  defendant,  a  subsequent  appropriator,  from  inter- 
fering with  his  dam  and  ditch,  and  the  latter  defended 


WESTERN   WATER   LAW 


its  action  on  the  ground  that  plaintiff's  dam  obstructed 
navigable  stream,  the  San  Joaquin  River.     It  was 
J     held  that  as  the  plaintiff  had  for  many  years  appro- 
^/priated  water  from  the  river,  a  navigable  stream,  with- 
complaint   from    any   public    authority,    state   or 
y  ^national,  and  that  while  navigation  had  been  inter- 

fered with,  no  person  not  connected  with  the  govern- 
ment could  complain.  All  cases  between  individuals 
raising  the  question  of  interference  with  navigation 
will  undoubtedly  be  decided  in  the  same  way.  It  is 
well  established,  however,  that  the 


not  only  stop  diversions  from  the  navigable  part  of 
a  stream  but  also  even  those  from  the  non-navigable 
part,  including  tributaries,  if  such  diversions  will  inter- 
fere with  navigation.  (United  States  v.  Rio  Grand 
D.  £  I.  Co.,  174  U.  S.  690). 

In  actual  work  lake  waters  are  often  appropriated. 
It  was  contended  in  the  Duckworth  case  (above)  that 

, -such  waters  were  not  "running  water  flowing  in  a 

1  stream."  but  the  court  held: 

We  think  the  better  doctrine  in  respect  to  the  character  of 

ft  e  r%    a  stream  from  which  the  statute  provides  for  appropriations  is 

that  it  is  not  necessary  that  the  stream  should  continue  to  flow 

to  the  sea  or  to  a  junction  with  some  other  stream.    It  is  suffi- 

j       /cient  if  there  is  flowing  stream;  and  the  fact  that  it  ends  either 

'  ^/j?  £f  in  a  swamp,  in  a  sandy  wash  in  which  water  disappears,  or  in 

J^  a  lake  in  which  it  is  accumulated  upon  the  surface  of  the  ground, 

£Q<\ »  will  not  defeat  the  right  to  make  the   statutory  appropriation 

therefrom,  and  we  can  see  no  reason  why  the  appropriation  in 

such  a  case  may  not  be  made  from  the  lake  in  which  the  stream 

terminates,    and    which    therefore    constitutes    a   part    of   it,    as 

well  as  from  any  other  part  of  the  water  course. 

In  Hough  v.  Porter  (98  Pac.  1083)  the  Oregon  Su- 
preme Court  held,  contrary  to  the  above,  in  speaking 
of  riparian  rights,  that  when  water  spreads,  as  in 
a  swamp  or  marsh,  "with  no  well-defined  current  it 
cannot  be  deemed  a  water  course."  As  the  Oregon 
statutes  now  provide  for  the  appropriation  of  "all 
waters"  within  the  State,  this  ruling  cannot  affect 
appropriators. 

It  is  well  settled  that  water  in  artificial  channels 


DOCTRINE   OF  APPROPRIATION  41 


or  reservoirs  cannot  be  ap£rjojDjr^ 
jfiajjy  ;_  _deyelQped"  a.S  jt^  a.  raining  tunnel  aad  allowed. 

to  flow  in  a  natural  water  course  to  place  of  intended 
use  are  likewise  exernpt.    It  has  been  recently  held  by 
the  Supreme  Court  of  New  Mexico  in  Vanderwork  v. 
Hewes   (110  Pac.  567),  decided  August  9,  1910,  that* 
"seepage  water  or  waters  from  snows,  rain,  or  springs,  /; 
not  traceable  to  and  forming  a  stream  or  water  course"*^  ~/  * 
may  be  used  by  the  owner  of  the  land  on  which  they<^  «l«* 
rise  and  are  not  subject  to  appropriation  without  hish&    &x 
consent.    The  rule  was  followed  by  the  Idaho  Supreme  iffrh  0 
Court  in  King  v.  Chamberlin  (118  Pac.  1099)  decided 
Nov.  3,  1911,  where  the  waters  in  question  were  sur- 
face waters  collected  in  a  reservoir  on  plaintiff's  land. 
In  the  first  chapter  the  notice  of  appropriation  from 
De  Wolfskill  v.  Smith  (5  Cal.  App.  175)  was  given, 
It   was   for   the   water   flowing  from    abandoned    oil 
wells  on  the  public  domain.    The  court  held  that  as  the 
water  had  gathered  into  a  stream,  it  was  immaterial 
''whether  this  stream  is  supplied  by  water  percolating  £y  M 
and  filtering  through  the  earth  or  not."     The  differ- 
ence between  this  case  and  those  cited  in  the  last  para- 
graph is  that  these  waters,  though  artificially  devel- 
oped, had  been  abandoned,  and  the  others  had  been 
retained  in  private  possession. 

Proceedings  to  Effect  Appropriations. 

An  appropriation  has  been  defined  as  "the  intent 
to  take,  accompanied  by  some  open,  physical  demon- 
stration of  the  intent,  and  for  some  valuable  use."  c^h 

Since  the  adoption  of  the  early  statutes  providing    #  -f 
for  the  posting  of  notices  at  the  point  of  intended 
diversion,  the  "intent"  is  expressed  in  the  notice.   Fol-    ^\ 
lowing  the  notice,  the  steps  are  the  recording  of  the 
notice  and  the  initiation  of  the  construction  work  with-  Jt) 
in  the  time  designated  —  generally  ten  and  sixty  days 
respectively  —  the  prosecution  of  construction  to  com- 
pletion  with  reasonable  diligence  and  the  application 
to  beneficial  use.     If  the  steps  be  followed,  the  water 
right  dates  from  the  posting  of  the  notice. 

The  question  of  reasonable  diligence  is  a  serious     u0n 


42  WESTERN   WATER   LAW 

one  and  especially  so  as  a  very  erroneous  view  is 
abroad  in  the  land.  A  common  idea  is  that  all  one 
need  do  "to  hold  the  claim"  is  to  act  about  as  he  would 
to  hold  a  mining  claim,  and  the  result  is  that  the  occa- 
sional use  of  a  shovel  and  wheelbarrow  are  supposed 
to  satisfy  the  requirement.  The  error  of  this  view  was 
shown  in  a  very  early  Nevada  case,  Ophir  Mining 

h&J  fj  Company  v.  Carpenter   (4  Nev.  534)   which  is  often 

quoted  on  this  question  by  other  courts.    The  follow- 

$<v|ng  sentences  are  very  much  to  the  point  and  picture 

/  we  reconditions  typical  of  far  too  many  of  our  so-called 
i^fAp^y/ater  claims : 

» M  Id  By*  If  the  labor  of  twenty  men  for  three  or  four  months,  in 
a  period  of  two  years  and  a  half,  constitutes  diligence  in  the 
prosecution  of  such  a  vast  enterprise  as  this,  it  is  difficult,  if 
'''riot  impossible,  to  designate  the  entire  want  of  diligence.  The 
manner  in  which  this  work  was  prosecuted  certainly  does  not 
accord  with  what  is  generally  understood  to  be  reasonable  dili- 
gence. Diligence  is  defined  to  be  the  "steady  application  to 
business  of  any  kind,  constant  effort  to  accomplish  any  under- 
taking." The  law  does  not  require  any  unusual  or  extraordi- 
nary efforts,  but  only  that  which  is  usual,  ordinary  and  reason- 
able. The  diligence  required  in  cases  of  this  kind  is  that 
constancy  or  steadiness  of  purpose  or  labor  which  is  usual 
with  men  engaged  in  like  enterprises,  and  who  desire  a  speedy 
accomplishment  of  their  designs.  Such  assiduity  in  the  prose 
cution  of  the  enterprise  as  will  manifest  to  the  world  a  bona  fide 
intention  to  complete  it  within  a  reasonable  time.  It  is  doing 
of  an  act,  or  series  of  acts,  with  all  practical  expedition,  with 
no  delay,  except  such  as  may  be  incident  to  the  work  itself. 
*  *  *  *  *  *  The  weather  would  not  have 
prevented  work  upon  this  ditch  ordinarily  more  than  three  or 
four  months  in  the  year,  hence  labor  upon  it  could  probably 
have  been  prosecuted  during  eight  or  jiine  months  out  of  every 
twelve.  Here,  however,  there  was  a  period  of  thirty  months, 
when  only  about  three  months'  work  was  done,  or  one  month 
•out  of  every  ten.  Rose  during  this  time  may  have  dreamed 
of  his  canal  completed,  seen  it  with  his  mind's  eye  yielding  him 
a  great  revenue;  he  may  have  indulged  the  hope  of  providential 
interposition  in  his  favor;  but  this  cannot  be  called  a  diligent 
prosecution  of  his  enterprise.  Surely  he  could  hardly  have  ex- 
pected to  complete  it  during  his  natural  life  by  such  efforts  as 
were  made  through  this  period. 


DOCTRINE    OF   APPROPRIATION  43 

As  the  question  of  diligence  is  one  of  fact  it  will 
ordinarily,  in  case  of  litigation,  be  decided  by  a  local 
jury.  The  jury  may  have  a  far  less  stringent  view  of 
"that  constancy  or  steadiness  of  purpose  or  labor"  than 
the  ordinary  engineer,  but  it  will  be  obliged  to  decide 
on  at  least  a  fair  degree  of  it.  The  size  and  charac- 
ter of  the  works,  the  natural  conditions,  including  cli- 
mate and  material,  and  all  other  modifying  elements, 
must  be  considered.  Illness  or  lack  of  money  are  gen- 
erally held  to  be  no  excuse  for  delay  but  the  latter 
has  been  accepted  as  a  valid  excuse  in  Colorado  and 
Idaho. 

Incomplete  Appropriations. 

JPripr  to  the  completion  of  the  diversion  works 
and  the  readiness  to  apply  the  water  to  beneficial  use 
the  appropriation  is  incomplete.  In  Rincon  Water  & 
Power  Company  v.  Anaheim  Union  Water  Company 
(115  Fed.  543)  Judge  Welborn  after  quoting  Sections 
1415  to  1418  of  the  California  Civil  Code  said: 

It  is  obvious  that  a  person  who  intends  to  become  an  ap- 
propriator  under  these  sections  cannot  acquire  the  exclusive  right 
to  the  use  of  the  water  he  intends  appropriating,  nor  maintain 
any  suit,  either  at  law  or  in  equity,  for  its  diversion,  until  all 
the  steps  requisite  to  an  appropriation  have  been  taken.  *  *  * 
From  the  statutory  enactments  and  general  principles  above 
quoted  and  stated,  the  conclusion  is  not  only  fair,  but  unavoid- 
able, that  the  only  right  which  a  person  acquires  by  posting 
a  notice  is  the  right  to  prosecute  without  interference  the  works 
necessary  to  consumate  his  intended  appropriation. 

The  question  was  before  the  California  Supreme 
Court  recently  in  two  cases,  resulting  from  the  opera- 
tions of  Los  Angeles  in  the  Owens  Valley — Inyo  Con- 
solidated Water  Company  v.  Jess  (119  Pac.  934)  de- 
cided Dec.  11,  1911,  and  Merritt  v.  Los  Angeles  (120 
Pac.  1064)  decided  Jan.  19,  1912.  The  plaintiff  in  each 
case  had  filed  a  notice  of  appropriation  on  a  stream 
within  a  national  forest  and  had  made  application 
to  the  Forest  Service  for  permission  to  construct 
the  conduit.  No  work  had  been  done  in  either  case 
as  the  Forest  Service  had  not  acted  on  the  applica- 
tion, and  Section  1422  of  the  Civil  Code  allows  60 


44  WESTERN   WATER   LAW 

days  after  the  grant  of  permission  from  the  federal 
authorities  in  which  to  begin  construction.  Each 
action  was  brought  to  obtain  an  adjudication  of  the 
alleged  conflicting  claims  and  the  lower  court,  follow- 
ing the  early  decisions,  decided  that  the  plaintiff  had 
no  property  interest  on  which  to  base  the  suit.  The 
Supreme  Court,  however,  decided  that  the  plaintiff 
had  "an  incomplete,  incipient,  conditional  right  in  the 
water,  which  is  a  vested  interest  in  real  property, 
and  which  may  be  adjudged  to  be  such  in  an  action 
to  determine  conflicting  claims."  In  the  later  case  the 
Supreme  Court  added : 

Such  judgment,  of  course  should  not  declare  the  plaintiff 
absolutely  entitled  to  the  water,  nor  enjoin  the  defendant  from 
taking  or  using  it  during  the  intervening  time  prior  to  the 
completion  of  plaintiff's  works  to  a  stage  which  will  enable  him 
to  divert  and  use  it.  It  should  only  declare  and  describe  the 
plaintiff's  contingent  right  to  use  the  water  and  enjoin  adverse 
claims  or  uses  injurious  thereto. 

The  only  effect  of  the  two  decisions,  therefore, 
is  to  secure  to  the  owner  of  an  incomplete  right  a  de- 
termination of  conflicting  claims.  They  do  not  allow 
interference  with  either  construction  of  works  or  actual 
diversions. 

The  Measure  of  the  Right. 

Under  a  great  many  of  the  early  decisions  not  only 
was  the  minimum  capacity  of  the  ditch  decreed  but  very 
often  the  amount  mentioned  in  the  notice,  which  might 
be  far  in  excess  of  the  maximum  capacity.  The  hold- 
ers of  these  old  rights  very  naturally  looked  upon  the 
amount  decreed  as  their  water,  whether  they  had  use 
for  it  or  not,  and  believed  that  they  had  the  right  to 
sell  as  desired.  No  court  would  tolerate  such  a  view 
today.  It  is  now  generally  held  that  a  right  to  the 
use  of  water  is  limited  in  time  and  volume  to  the  ex- 
tent of  the  needs  of  the  possessor  thereof. 

The  rule  is  well  illustrated  by  the  following  quo- 
tation from  McCoy  v.  Huntley  (119  Pac.  481)  decided 
by  the  Supreme  Court  of  Oregon  Jan.  15,  1912. 

We  see  no  reason  why,  even  in  cases  involving  prior  and  sub- 
sequent appropriations  of  water,  the  courts  cannot  require  the 


DOCTRINE    OF   APPROPRIATION  45 

appropriators  to  alternate  in  the  use  of  the  water.  The  time 
when  water  may  be  used  recklessly  or  carelessly  has  passed 
in  this  State.  With  increasing  settlement  water  has  become  too 
scarce  and  too  precious  to  justify  any  but  an  economical  use 
of  it.  An  appropriator  has  only  the  right  to  use  so  much  as  his 
needs  require  and  at  the  time  his  needs  require.  And  if  these 
are  satisfied  by  a  use  of  the  whole  flow  every  other  day,  or  every 
alternate  week,  he  ought  not  to  be  heard  to  complain.  It  is 
evident  that  from  some  cause  or  from  a  variety  of  causes  the 
waters  of  Pine  creek  are  diminishing  in  volume  at  the  point 
where  the  parties  to  this  controversy  are  residing.  It  is  now 
probable  that  to  divide  the  water,  without  alternating,  would 
injure  both  parties.  A  test,  since  the  preliminary  order  was  made 
in  this  case  in  1906,  indicates  that  by  the  method  adopted  both 
parties  can  raise  good  crops  and  both  prosper. 

Principles  of  Prior  Appropriation. 

Probably  the  best  judicial  summary  of  the  prin- 
ciples of  prior  appropriation  appearing  in  the  re- 
ported cases  is  that  of  Judge  Hawley  in  Union  Mill  & 
Mining  Company  v.  Dangberg  (81  Fed.  73)  decided 
May  24,  1897.  It  was  Judge  Hawley  who,  when  a 
Justice  of  the  Nevada  Supreme  Court,  wrote  the  opin- 
ion in  Jones  v.  Adams  overruling  Van  Sickle  v. 
Haines  and  abrogating  the  doctrine  of  riparian  rights 
in  Nevada.  His  opinions  in  both  the  law  of  mines 
and  the  law  of  waters  show  a  deep  knowledge  of  the 
industries  affected  and  an  earnest  desire  to  assist 
in  bettering  conditions.  The  reader  will  find  the 
Dangberg  case  both  interesting  and  instructive.  The 
summary  follows : 

Under  the  principles  of  prior  appropriation,  the  law  is  well 
settled  that  the  right  to  water  flowing  in  the  public  streams  may 
be  acquired  by  an  actual  appropriation  of  the  water  for  a  bene- 
ficial use;  that,  if  it  is  used  for  irrigation,  the  appropriator  is 
only  entitled  to  the  amount  of  water  that  is  necessary  to  irri- 
gate his  land,  by  making  a  reasonable  use  of  the  water;  that 
the  object  had  in  view  at  the  time  of  the  appropriation  and 
diversion  of  the  water  is  to  be  considered  in  connection  with 
the  extent  and  right  of  appropriation;  that,  if  the  capacity  of 
the  flume,  ditch,  canal,  or  other  aqueduct,  by  means  of  which 
the  water  is  conducted,  is  of  greater  capacity  than  is  necessary 
to  irrigate  the  lands  of  the  appropriator,  he  will  be  restricted 


46  WESTERN   WATER   LAW 

to  the  quantity  of  water  needed  for  the  purposes  of  irrigation,  for 
watering  his  stock,  and  for  domestic  use;  that  the  same  rule 
applies  to  an  appropriation  made  for  any  other  beneficial  use 
or  purpose;  that  no  person  can,  by  virtue  of  his  appropriation, 
acquire  a  right  to  any  more  water  than  is  necessary  for  the  pur- 
pose of  his  appropriation;  that,  if  the  water  is  used  for  the  pur- 
pose of  irrigating  lands  owned  by  the  appropriator,  the  right  is 
not  confined  to  the  amount  of  water  used  at  the  time  the 
appropriation  is  made;  that  the  appropriator  is  entitled,  not 
only  to  his  needs  and  necessities,  at  that  time,  but  to  such  other 
and  further  amount  of  water,  within  the  capacity  of  his  ditch, 
and  further  amount  of  water,  within  the  capacity  of  his 
ditch,  as  would  be  required  for  the  future  improve- 
ment and  extended  cultivation  of  his  lands,  if  the  right  is 
otherwise  kept  up;  that  the  intention  of  the  appropriator,  his 
object  and  purpose  in  making  the  appropriation,  his  acts  and 
conduct  in  regard  thereto,  the  quantity  and  character  of  land 
owned  by  him,  his  necessities,  ability,  and  surroundings,  must 
be  considered  by  the  courts,  in  connection  with  the  extent  of 
his  actual  appropriation  and  use,  in  determining  and  defining 
his  rights;  that  the  mere  act  of  commencing  the  construction 
of  a  ditch  with  the  avowed  intention  of  appropriating  a  given 
quantity  of  water  from  a  stream  gives  no  right  to  the  water 
unless  this  purpose  and  intention"  are  carried  out  by  the  rea- 
sonable, diligent,  and  effectual  prosecution  of  the  work  to  the 
final  completion  of  the  ditch,  and  diversion  of  the  water  to  some 
beneficial  use ;  that  the  rights  acquired  by  the  appropriator  must 
be  exercised  with  reference  to  the  general  condition  of  the  coun- 
try and  the  necessities  of  the  community,  and  measured  in  its 
extent  by  the  actual  needs  of  the  particular  purpose  for  which 
the  appropriation  is  made,  and  not  for  the  purpose  of  obtaining 
a  monopoly  of  the  water,  so  as  to  prevent  its  use  for  a  beneficial 
purpose  by  other  persons;  that  the  diversion  of  the  water  ripens 
into  a  valid  appropriation  only  where  it  is  utilized  by  the  appro- 
priator for  a  beneficial  use;  that  the  surplus  or  waste  water  of  a 
stream  may  be  appropriated,  subject  to  the  rights  of  prior  appro- 
priators,  and  such  an  appropriator  is  entitled  to  use  all  such  wat- 
ers ;  that,  in  controversies  between  prior  and  subsequent  appro- 
priators  q£  water,  the  question  generally  is  whether  the  use  and 
enjoyment  of  the  water  for  the  purposes  to  which  the  water  is 
applied  by  the  prior  appropriator  have  been  in  any  manner  im- 
paired by  the  acts  of  the  subsequent  appropriator."  Union  Mill 
&  Mining  Company  v.  Dangberg,  81  Fed.  73. 


CHAPTER  V. 

LOSS  OF  WATER  RIGHTS. 

Water  rights,  like  other  real  property,  may  be  lost 
by  abandonment,  forfeiture,  adverse  user  or  prescrip- 
tion, or  estoppel. 

Abandonment  and  Forfeiture. 
Abandonment  is  often  defined  as  "the  relinquish- 
ment  or  surrender  of  rights  or  property  by  one  per- 
son to  another,"  but  in  the  law  of  waters  abandonment 
simply  adds  to  the  unappropriated  public  waters  and 
the  benefits  therefrom  are  not  intended  to  accrue  to 
a  particular  person.  It  consists  of  the  two  elements, 
act  and  intention ;  although  the  latter  is  generally  con- 
sidered the  "essence"  thereof.  As  stated  in  Utt  v. 
Frey  (106  Cal.  397)  : 

The  mere  intention  to  abandon,  if  not  coupled  with  yielding 
up  possession  or  a  cessation  of  user,  is  not  sufficient;  nor  will 
the  nonuser  alone  without  an  intention  to  abandon  be  held 
to  amount  to  an  abandonment.  Abandonment  is  a  question  of 
fact  to  be  determined  by  a  jury  or  the  court  sitting  as  such. 

The  intention  to  abandon  must  be  shown  by 
nonuse  and  similar  acts,  but  nonuse,  unless  continued 
for  an  unreasonable  period,  will  not  be  sufficient.  The 
presumption  created  by  even  an  unreasonable  non-use 
may  be  overcome  by  satisfactory  proofs.  The  opinion 
of  the  Supreme  Court  of  Montana  in  Smith  v.  Hope 
Mining  Company  (45  Pac.  632)  is  especially  note- 
worthy as  the  water  to  run  a  mill  had  not  been  used 

47 


48  WESTERN   WATER   LAW 

for  nine  years  but  the  machinery  was  cared  for  and 
maintained  in  good  condition  during  the  period  of 
non-use.  The  Court  said: 

It  is  true  that  the  evidence  shows  without  controversy  that 
the  Algonquin  Company  did  not  use  the  waters,  in  their  mill  or 
otherwise,  for  a  period  of  about  nine  years  following  1883.  But 
mere  nonuser  of  a  water  right  is  not  abandonment. 
The  nonuser  of  water  for  so  long  a  period,  and  especially  a 
period  longer  than  the  statute  of  limitations,  is  certainly  very 
potent  evidence,  if  it  stood  alone,  of  an  intention  to  abandon. 
*  *  '  *  But  what  ever  force  the  fact  of  nonuser  for  nine 
years  may  have  had  in  showing  an  intention  to  abandon,  that 
force  was  wholly  offset  and  contradicted  by  the  other  evidence 
in  the  case,  so  as  to  leave,  in  our  opinion,  not  even  a  conflict  of 
testimony. 

As  riparian  rights  to  the  use  of  water  do  not 
depend  upon  use  nor  cease  with  disuse,  they  cannot 
be  lost  by  abandonment,  so  that  this  question  can 
only  be  raised  regarding  rights  by  appropriation. 
Although  water  rights  and  ditches  are  generally 
thought  of  as  one,  they  are  distinct  property  interests 
and  either  may  be  held  without  the  other.  A  ditch  can 
accordingly  be  abandoned  without  abandoning  the  wat- 
er right.  Likewise  water  may  be  turned  into  natural 
water  courses  for  diversion  at  lower  points  without 
it  being  held  an  abandonment — that  is,  the  waterway 
may  be  used  as  part  of  the  ditch  system.  It  is  also 
held  without  exception  that  the  point  of  diversion,  the 
place  of  use  and  the  manner  of  use  may  be  changed 
without  loss  of  right,  provided  no  other  user  is  in- 
jured thereby. 

As  non-use  under  the  court  rulings  simply  raises 
the  presumption  of  abandonment,  a  number  of  the 
western  states  have  fixed  by  statute  a  definite  period 
for  which  non-use  will  work  a  forfeiture  of  the  right. 
The  prescribed  period  in  Utah  is  seven  years ;  in  Wy- 
oming and  Idaho  five  years;  in  New  Mexico  four 
years;  in  North  Dakota  and  South  Dakota  three 
years ;  in  Oklahoma  two  years ;  in  Oregon  one  year. 
Both  the  Utah  and  Oregon  statutes  contain  the  added 
provision  that  a  question  of  abandonment  shall  be  one 


LOSS    OF  WATER   RIGHTS  49 

of  fact,  to  be  tried  and  determined  as  other  questions 
of  fact.  The  virtue  of  the  two  statutes  is  thereby  de- 
stroyed as  the  aim  of  such  statutes  is  to  definitely  fix 
the  period  of  non-use  which  shall  constitute  a  forfeiture 
and  thus  preclude  court  proceedings  to  determine  the 
intention.  The  Supreme  Court  of  Oregon  in  Hough  v. 
Porter  (98  Pac.  1083)  recently  said: 

The  right  to  the  use  of  water  by  nonuser  alone  cannot  be 
deemed  forfeited  short  of  the  period  prescribed  by  the  statute 
of  limitation  for  real  actions.  Dodge  v.  Harden,  7  Or.  456.  But 
such  right  may  become  extinguished  by  any  act  showing  an  in- 
tent to  surrender  or  abandon  the  right,  after  which,  if  the  per- 
son having  the  right  ceases  its  use  for  one  year,  his  interest 
is  lost;  but  the  facts  essential  to  a  forfeiture  by  this  company 
are  not  established  by  the  proof.  The  nonuse  from  1893  to  1900 
is  shown;  but  this  alone  is  insufficient.  To  constitute  an  aban- 
donment of  a  water  right,  there  must  be  a  concurrence  of  the 
intention  to  abandon  it  and  an  actual  failure  in  its  use. 

The  leading  California  case  on  the  question  of 
forfeiture,  or  loss  of  right  through  non-use,  and  one 
much  quoted  in  other  jurisdictions,  is  Smith  v.  Haw- 
kins (110  Cal.  122).  The  court  therein  distinguishes 
between  abandonment  and  forfeiture,  and  on  account 
of  its  importance  the  following  long  quotation  is  given  : 

Section  1411  of  the  Civil  Code  declares  that  the  appropria- 
tion must  be  for  some  useful  or  beneficial  purpose,  and  when 
the  appropriator  or  his  successor  in  interest  ceases  to  use  it  for 
such  purpose,  the  right  ceases.  This  section  deals  with  the  for- 
feiture of  a  right  by  nonuser  alone.  We  say  nonuser,  as  dis- 
tinguished from  abandonment.  If  an  appropriator  has,  in  fact, 
abandoned  his  right,  it  would  matter  not  for  how  long  a  time 
he  had  ceased  to  use  the  water,  for  the  moment  that  the  aban- 
donment itself  was  complete  his  rights  would  cease  and  deter- 
mine. Upon  the  other  hand,  he  may  have  leased  his  property, 
and  paid  taxes  thereon,  thus  negativing  the  idea  of  abandon- 
ment, as  in  this  case,  and  yet  may  have  failed  for  many  years 
to  make  any  beneficial  use  of  the  water  he  has  appropriated.  The 
question  presented,  therefore,  is  not  one  of  abandonment,  but 
one  of  nonuser  merely,  and,  as  such,  involves  a  construction  of 
Section  1411  of  the  Civil  Code.  That  section,  as  has  been  said, 
makes  a  cessation  of  use  by  the  appropriator  work  a  forfeiture 
of  his  right,  and  the  question  for  determination  is,  How  long 
must  this  nonuser  continue  before  the  right  lapses? 


50  WESTERN   WATER   LAW 

Upon  this  point  the  legislature  has  made  no  specific  declara- 
tion, but,  by  analogy,  we  hold  that  a  continuous  nonuser  for  five 
years  will  forfeit  the  right.  The  right  to  use  the  water  ceasing 
at  that  time,  the  rights  of  way  for  ditches  and  the  like,  which 
are  incidental  to  the  primary  right  of  use,  would  fall  also,  and 
the  servient  tenement  would  be  thus  relieved  from  the  servitude. 

In  this  state  five  years  is  the  period  fixed  by  law  for  the 
ripening  of  an  adverse  possession  into  a  prescriptive  title.  Five 
years  is  also  the  period  declared  by  law  after  which  a  prescriptive 
right  depending  upon  enjoyment  is  lost  for  nonuser;  and  for 
analogous  reasons  we  consider  it  to  be  a  just  and  proper  meas- 
ure of  time  for  the  forfeiture  of  an  appropriator's  rights  for  a 
failure  to  use  the  water  for  a  beneficial  purpose. 

In  the  preceding  chapter  it  was  stated  that  under 
the  doctrine  of  prior  appropriation  one  is  given  a  rea- 
sonable time  after  the  completion  of  the  diversion 
works  in  which  to  apply  the  water  claimed  to  bene- 
ficial use.  In  the  case  of  an  irrigation  project  this 
application  requires  a  number  of  years  which  is  defi- 
nitely fixed  in  those  states  where  appropriations  are 
made  by  application  to  the  State  Engineer,  but  which, 
in  states  like  California  where  the  posting  of  notices 
is  still  tolerated,  is  limited  only  by  the  rule  of  rea- 
sonable diligence.  This  time  limit  for  the  larger  pro- 
jects has  seldom  been  passed  upon  in  the  reported 
cases.  The  five-year  period  fixed  in  Smith  v,  Hawkins 
must  not  be  taken  as  a  precedent  in  cases  of  incom- 
plete appropriations  as  in  the  latter  the  right  to 
the  full  amount  of  the  appropriation  is  conditioned 
upon  the  irrigation  of  all  the  land  under  the  ditch 
within  a  reasonable  time.  Smith  v.  Hawkins  deals 
with  a  right  which  had  become  completely  vested  and 
later  fell  into  disuse.  It  is  believed  that  the  larger 
irrigation  projects  will  be  allowed  a  longer  period 
than  five  years  in  which  to  apply  all  the  water  to  bene- 
ficial use  as  the  settlement  of  such  generally  necessi- 
tates a  greater  time. 

Adverse  Use  or  Prescription. 

These  are  a  very  few  cases  involving  the  alleged 
wrongful  divrsion  of  water  in  which  a  right  by  ad- 


LOSS    OF   WATER   RIGHTS  51 

verse  use  or  prescription  is  not  pleaded.  Neverthe- 
less there  are  very  few  cases  in  which  such  title  is 
upheld,  as  it  is  seldom  that  a  case  presents  all  the  ele- 
ments necessary  to  prove  adverse  use.  In  order  to 
ripen  into  title  the  adverse  use  must  be*~  continuous 
for  the  statutory  period,  open,  notorious,  peaceable, 
under  claim  or  color  of  right,  and  to  the  damage  of 
the  water-user  against  whom  the  right  accrues.  The 
burden  of  proof  is  on  the  claimant  of  the  adverse  title. 

The  statutory  period  referred  to  is  the  period 
provided  in  the  statute  of  limitations  regarding  actions 
pertaining  to  real  property.  The  period  for  the  west- 
ern states  is  as  follows :  Arizona,  three  years ;  Cali- 
fornia, Colorado,  Idaho  and  Nevada,  five  years;  Utah, 
seven  years;  Montana,  Nebraska,  North  Dakota,  Ore- 
gon, Texas,  Washington  and  Wyoming,  ten  years; 
Kansas,  fifteen  years;  South  Dakota,  twenty  years. 
By  "continuous"  is  not  meant  that  the  use  should  be 
unceasing  for  the  period,  but  simply  that  the  claim- 
'ant  used  the  water  during  such  times  as  he  needed  it. 
In  the  case  of  irrigation  the  water  might  be  needed 
but  one  day  during  each  month  of  the  irrigation  sea- 
son, and  such  use  if  made  for  the  statutory  period 
would  be  held  "continuous." 

"Open"  and  "notorious"  signify  that  the  use  has 
not  been  by  stealth  but  on  the  contrary  "before  all 
the  world,"  so  as  to  be  generally  known.  'Teacjsable" 
(or  "uninterrupted")  means  that  the  original  possessor 
of  the  right  has  not  interfered  with  the  adverse  use. 
Any  interference  or  interruption,  however  slight,  will 
prevent  the  acquisition  of  the  right.  Mere  verbal  pro- 
tests, however,  are  not  considered  interruptions — the 
latter  must  be  due  to  some  physical  act,  such  as  clos- 
ing down  a  headgate,  cutting  a  ditch  bank,  or  break- 
ing a  diversion  dam. 

The  claimant  must  consider  and  treat  the  right 
as  his  own  and  not  acknowledge  a  superior  claim  on 
the  part  of  the  original  owner.  If  at_jany-~tim€--dariflg 
the  statutory  period  permission  to  divert  the  water 
has  been  sought,  the  adverse  claim  must  fail. 


52  WESTERN   WATER   LAW 

That  the  use  has  been  to  the  damage  or  detriment 
of  the  original  possessor  is  generally  the  most  diffi- 
cult of  the  many  points  to  prove.  So  long  as  there 
is  sufficient  water  in  the  stream  for  both  no  such  dam- 
age can  result.  This  point  is  especially  difficult  when 
the  adverse  use  is  being  claimed  against  a  lower 
riparian  owner.  As  such  an  owner  does  not  have  to 
use  the  water,  no  one  knows  what  stream  depletion 
— short  of  the  diversion  of  the  entire  flow — will  be 
of  detriment.  The  problem  was  quite  the  other  way 
in  the  early  California  cases  where  the  riparian  owner 
sought  to  enjoin  an  upper  appropriator.  In  Heilbron 
v.  Fowler  Switch  Canal  Co.  (75  Cal.  426)  the  company, 
an  appropriator,  claimed  that  its  diversion  would  re- 
sult in  no  appreciable  injury  to  the  plaintiff's  land — 
a  Spanish  grant.  Although  the  following  quotation 
does  not  present  other  and  very  material  facts  upon 
which  the  court  based  its  injunction,  it  shows  the  "one- 
sidedness"  of  the  struggle  between  riparian  owners 
and  appropriators : 

The  injury  is  one,  also,  which  in  its  nature  cannot  be  esti- 
mated. In  the  recent  case  of  Heilbron  v.  Last  Chance  Company 
it  was  said:  "The  flow  of  the  water  of  a  stream,  whether  it 
.overflow  the  banks  or  not,  naturally  irrigates  and  moistens  the 
ground  to  a  great  and  unknown  extent,  and  thus  stimulates 
vegetation,  and  the  growth  and  decay  of  vegetation  add,  not  only 
to  the  fertility,  but  to  the  substance  and  quantity  of  the  soil." 

If  this  be  so, — and  it  cannot  be  doubted — it  is  obvious  that  in 
a  climate  like  that  where  this  land  is  situated,  the  benefit  derived 
from  a  flow  of  water  for  thirty  miles  along  its  boundary,  and 
ten  miles  through  it,  cannot  be  inconsiderable,  but  yet  the  ex- 
tent of  benefit  must  ever  be  an  unknown  quantity. 

The  defendant  here  states  that  the  channel  of  the  river  above 
and  along  this  land  is  deep,  and  therefore  at  times  of  ordinary 
flow  the  seepage  cannot  be  great.  If  so,  it  must  be  important 
to  plaintiffs  that  the  channel  should  carry  a  full  stream,  and 
evidently  at  such  times  the  percolation  would  be  increased. 

It  is  clear  from  the  above  that,  unless  the  atti- 
tude of  the  court  be  changed,  the  riparian  owner  can 
easily  show  sufficient  damage  to  secure  an  injunction, 
but  the  problem  before  the  appropriator  of  showing 


LOSS    OF  WATER   RIGHTS  53 

sufficient  damage  to  justify  a  finding  of  adverse  use  is 
far  different.  As  stated  the  only  case  which  i&  cer- 
tain is  where  the  appropriator  has  continuously 
diverted  the  entire  low  water  flow.  Regarding  the 
damage  as  between  appropriators  Judge  Hawley  in 
Union  Mill  &  Mining  Company  v.  Dangberg  (81  Fed. 
73)  said,  "There  must  have  been  such  a  use  of  the 
water,  and  such  damage,  as  would  raise  a  persumption 
that  complainant  would  not  have  submitted  to  it  un- 
less the  respondents  had  acquired  the  right  to  use  it." 

The  idea  is  current  in  California  that  use  by 
an  appropriator  for  the  statutory  period — five  years — 
gives  an  absolute  right  as  against  lower  riparian  own- 
ers. As  indicated  above,  the  water  must  not  only  be 
used  but  it  must  be  used  adversely,  so  that  the  cur- 
rent view  is  far  from  correct. 

It  should  be  apparent  to  all  that  an  appropriator 
can  secure  no  adverse  title  against  an  upper  riparian 
owner,,  but  cases  are  constantly  arising  where  this 
plea  is  made.  In  Rogers  v.  Overacker  (4  Cal.  App. 
333)  the  California  Supreme  Court  in  dealing  with 
such  a  plea  said : 

The  rule  seems  to  be  as  laid  down  in  Bathgate  v.  Irvine, 
126  Cal.  135,  77  Am.  St.  ep.  158,  58  Pac.  442,  and  Hargrave  v. 
Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  R.  A.  390.  In  the  first  case 
it  was  said,  approving  the  latter  case,  that  a  lower  riparian  owner 
cannot  acquire  a  right,  either  by  prior  appropriation  or  by  pre- 
scription or  adverse  user,  as  against  an  upper  riparian  proprietor 
whose  rights  .antedate  the  appropriation  and  user,  and  the  mere 
nonuser  of  the  water  by  the  upper  proprietor  and  his  permit- 
ting the  water  to  pass  down  to  the  lands  of  the  lower  owner  can- 
not make  the  user  of  the  lower  owner  adverse  or  strengthen  his 
claim  of  appropriation  or  prescription. 

The  expression  "as  against  an  upper  riparian  pro- 
prietor whose  rights  antedate  the  appropriation  and 
user"  refer  to  the  well  settled  rule  that  the  rights  of 
the  appropriator  are  superior  to  those  of  the  riparian 
owner  where  the  former  had  initiated  his  appropria- 
tion while  the  riparian  land  in  question  was  unentered 
public  land.  Occasionally,  even  in  the  reported  cases, 
the  rights  of  the  appropriator  are  considered  superior 


54  WESTERN    WATER   LAW 

if  initiated  before  patent  issued  for  the  riparian  land. 
The  present  accepted  view  is,  however,  that  the 
riparian  owner's  rights  date  from  his  entry  of  the 
land  and  not  from  the  issuance  of  patent^  and,  there- 
fore, to  be  superior,  the  appropriator  must  have  ini- 
tiated his  rights  to  the  water  prior  to  the  time  the 
riparian  owner  initiated  his  rights  to  the  land. 
Estoppel. 

"Estoppel  by  silence"  arises  where  a  person  who 
by  force  of  circumstances  is  under  a  duty  to  another 
to  speak  refrains  from  doing  so  and  thereby  leads  the 
other  to  believe  in  the  existence  of  a  state  of  facts  in 
reliance  upon  which  he  acts  to  his  prejudice  (16 
Cyc.  681). 

Although  the  general  principles  of  appropriation 
are  understood  by  those  diverting,  or  intending  to 
divert,  water  and  especially  the  rule  that  the  subse- 
quent appropriator  takes  only  what  is  left,  it  is  very 
common  to  have  the  claim  made  that  no  notice  of 
the  rights  of  the  opposing  party  was  given  and  that 
said  party  is  estopped  from  setting  up  a  superior  right. 
The  courts  very  early  in  the  mining  period  expressed 
themselves  strongly  to  the  contrary  but  the  claim 
still  persists.  In  a  recent  California  case  dealing 
with  underground  waters  it  is  said: 

The  mere  fact  that  the  defendants  expended  money  in  sink- 
ing the  wells  and  putting  in  the  pumps  each  upon  his  own  land, 
with  the  knowledge  of  the  plaintiffs  and  without  objection  by 
them,  creates  no  estoppel.  A  mere  passive  acquiescence  when 
one  is  under  no  duty  to  speak  does  not  raise  an  estoppel."  (Ver- 
dugo  Canyon  Water  Company  v.  Verdugo  152  Cal.  655). 

Practically  the  same  language  has  been  used  in 
a  number  of  cases  where  the  point  was  raised.  It  is 
therefore  established  beyond  doubt  that  jieither  a 
riparian  owner  nor  an  appropriator  need  serve  notice 
of  existing  rights  upon  a  subsequent  appropriator  en- 
gaged in  the  construction  of  diversion  or  storage 
works. 

Rights  of  Way  by  Prescription. 

^Rights  of  way  for  ditches  may.  be  acquired  by 
prescription  in  the  same  way  as  water  rights.  The 


LOSS    OP   WATER    RIGHTS  55 

most  serious  element  in  so  proving  is  the  "color  of 
title."  After  a  ditch  has  been  constructed  and  oper- 
ated for  years  it  is  very  difficult  to  show  that  the 
right  does  not  rest  upon  permission  to  occupy  given 
by  the  owner  of  the  land  crossed — that  is,  parol  license. 
The  statute  of  frauds  provides  that  interest  in  real 
property  can  be  conveyed  only  by  written  instruments. 
As  a  ditch  right  of  way  is  such  an  interest,  the  original 
and  strict  legal  rule  is  that  the  right  cannot  be  founded 
on  a  parol  license;  but  the  rule  has  been  modified,  if 
not  reversed,  in  a  great  many  of  the  states. 

In  the  very  recent  case  of  Gustin  v.  Harting  (121 
Pac.  522),  decided  Feb.  17,  1912,  the  Supreme  Court  of 
Wyoming  considered  at  great  length  the  question 
as  to  whether  the  plaintiff  had  acquired  a  right  of  way 
for  a  flume  by  prescription  and  also  the  right  to  main- 
tain it  under  an  irrevocable  license — it  being  admitted 
that  the  flume  had  been  constructed  with  the  parol 
consent  of  the  landowner,  the  defendant.  It  was  held 
that,  under  the  existing  facts,  the  license  was  irre- 
vocable and  the  right  to  maintain  the  flume  secured 
by  prescription.  In  reaching  its  conclusion  the  Court 
said :  A 

The  principle  that  a  parol  license,  when  executed  by  the  \ 
/   expenditure  of  money  or  labor,  if  not  given  for  a  mere  tern-    j 

porary  purpose,  becomes  irrevocable,  has  been  recognized  and 
V     applied  in  several  other  cases  involving  irrigating  works. 

Among  the  many  cases  cited  and  examined  in 
support  of  the  principle  are  some  from  California, 
Colorado,  Nebraska  and  Oregon,  showing  that  they 
also  recognize  the  modified  rule.  To  these  Utah  may 
be  added. 

The  Supreme  Courts  of  Montana  and  Washington 
refuse  to  accept  the  modified  rule.  In  Archer  v.  Chi- 
cago M.  &  St.  P.  Ry.  Co.  (108  Pac.  571),  decided 
April  2.  1910,  the  Supreme  Court  of  Montana  con- 
sidered cases  in  favor  of  the  new  rule  but  held  that, 
"sound  *  *  *  reasoning  sustains  the  rule  that 
a  parol  license  of  the  character  of  the  one  under  con- 
sideration is  always  revocable  at  the  pleasure  of  the 
licensor." 


CHAPTER  VI. 
WATER  RIGHT  LEGISLATION. 

Legislation  regarding  water  rights  to  be  complete 
mustTprovide  for  the  acquirement  of  rights,  for  the 
definition  or  adjudication  of  existing  rights  and  for  the 
distribution  of  water  among  those  entitled  to  its  use. 

California. 

With  the  exception  of  the  Statutes  of  1911,  deal- 
ing with  the  appropriation  of  water  for  power  pur- 
poses only,  Sections  1410  to  1422  of  the  Civil  Code 
contain  all  of  California's  legislation  in  regard  to  the 
acquisition  of  water  rights. 

As  previously  stated  these  sections  simply  provide 
for  the  initiation  of  rights  by  the  posting  of  notices 
and  for  the  benefits  of  the  doctrine  of  relation  if  the 
works  are  completed  with  reasonable  diligence.  There 
is  no  provision  for  public  inspection  at  any  stage. 

There  are  no  statutes  specially  providing  for  the 
adjudication  of  water  rights,  and  disputes  between 
ditch  owners  are  subject  to  the  regular  court  pro- 
cedure. The  litigation  is,  therefore,  between  two  or 
more  claimants,  and  rarely  are  all  the  appropriators 
brought  into  a  single  action.  Where  there  are  many 
diversions,  as  is  the  case  on  the  ordinary  stream,  there 
may  be  an  indefinite  number  of  actions  without  all  the 
rights  on  the  stream  being  adjudicated. 

Likewise,  there  are  no  statutes  providing  for  the 
distribution  of  water  according  to  decree.  Ordinarily 
the  successful  contestant  has  to  resort  to  either  force 
or  contempt  proceedings  in  order  to  obtain  what  the 


WATER    RIGHT    LEGISLATION  57 

court  has  given  him,  and  the  former  is  too  frequently 
the  choice. 

Colorado. 

Acquirement  of  Rights.  —  The  first  statutes  regard- 
ing water  rights  adopted  in  the  various  western  states 
were  patterned  after  those  of  California.  The  first 
state  to  make  any  advance  was  Colorado  where  the 
office  of  state  engineer  was  established  in  1881. 

At  the  same  session  the  so-called  "Map  and  State- 
ment" act  was  adopted  but,  owing  to  a  defective  title, 
was  held  unconstitutional  in  1899.  A  second  act,  very 
similar  to  the  first,  was  passed  in  1903,  and  now  gov- 
erns the  acquirement  of  rights.  It  provides  that  within 
sixty  days  after  the  commencement  of  the  surveys 
or  of  the  actual  construction  of  any  ditch  or  reser- 
voir or  enlargement  or  extension  thereof,  a  filing  must 
be  made  in  the  office  of  the  state  engineer  of  duplicate  »j\  p|> 
maps  and  statements  containing  the  information  re- 
quired by  the  act  and  of  a  form  satisfactory  to  the 
state  engineer.  If  satisfactory  to  the  state  engineer 
one  copy  is  filed  in  his  office  and  the  other  approved 
and  certified  and  returned  to  the  claimant  who  must, 
within  90  days  from  date  of  commencement,  file  it  in 
the  office  of  the  county  clerk  of  county  in  which  the 
headgate  or  reservoir  lies.  It  is  further  provided  that 
a  certified  copy  of  the  map  and  statement  shall  be 
prima  facie  evidence  of  the  intent  of  the  claimant.  The 
Act  of  1881  provided  that  the  right  dated  back  to  the 
commencement  of  the  work  upon  compliance  with  the 
act  and  the  exercise  of  reasonable  diligence  in  con- 
struction. The  present  act  is  silent  on  this  important 
point  but  where  all  the  prescribed  steps  are  taken  the 
courts  will  undoubtedly  hold  that  the  right  dates  from 
the  commencement  of  the  work. 

The  state  engineer  has  issued  a  circular  contain- 
ing the  list  of  fees  (Act  of  1911),  text  of  forms,  and  the 
•\rules  and  regulations  in  regard  to  the  preparation  of 
maps  and  statements.  The  circular  states,  "It  is  com- 
pulsory to  use  the  forms  of  statements  and  affidavits 
as  given  herein.  It  will  save  time  and  delays." 


0~**iui£&~  <«»»  •  •  ** 

^     y; 


58  WESTERN   WATER   LAW 

There  is  no  question,  therefore,  but  that  the  state  en- 
gineer has  a  satisfactory  record  of  the  intention  of  new 
appropriators  in  Colorado,  but  there  his  supervision 
ends.  Other  than  the  provision  that  due  diligence  in 
construction  must  be  exercised,  the  act  is  silent  regard- 
ing any  record  of  proof  thereof,  so  that  the  claimant, 
in  case  of  dispute,  must  settle  the  point  in  the  courts, 
as  in  California.  In  regard  to  the  acquirement  of 
rights,  therefore,  Colorado  has  but  slightly  improved 
upon  California. 

Adjudication  of  Rights. — Colorado  in  1879  and 
1881  adopted  a  special  procedure  for  the  adjudication 
of  water  rights.  It  was  provided  that  on  or  before  June 
1,  1881,  every  claimant  of  an  interest  in  a  ditch  or  reser- 
voir within  any  water  district  should  file  with  the  clerk 
of  the  district  court  having  jurisdiction  a  sworn  state- 
ment setting  forth  among  other  things  the  date  of 
his  appropriation  -by  original  construction,  also  by 
enlargement  or  extension,  the  amount  of  water 
claimed,  the  existing  capacity  of  ditch  and  the  number 
of  acres  lying  under  and  being  or  proposed  to  be  irri- 
gated by  each  ditch  or  reservoir.  Since  the  date  for 
filing  such  claims,  June  1,  1881,  an  adjudication  of  all 
rights  to  water  from  a  common  source  within  a  dis- 
trict is  initiated  by  one  or  more  interested  persons 
(who  have  filled  the  required  claim)  petitioning  the 
district  court  having  jurisdiction.  The  judge  either 
sets  a  day  for  the  taking  of  evidence  in  open  court 
or,  as  is  the  usual  practice,  appoints  a  referee  to  take 
and  report  the  evidence,  make  an  abstract  and  findings 
upon  same  and  prepare  the  decree.  The  referee  gives 
notice  of  the  times  and  places  at  which  he  will  take 
the  required  evidence  and  proofs  of  priority.  In  regard 
to  the  facts  to  be  ascertained  by  proofs  the  act  pro- 
\  ides : 

Said  referee  shall  also  examine  all  witnesses  to  his  own  sat- 
isfaction, touching  any  point  involved  in  the  matter  in  question, 
and  shall  ascertain  as  far  as  possible  the  date  of  the  commence- 
ment of  each  ditch,  canal  or  reservoir,  with  the  original  size 
and  carrying  capacity  thereof,  the  time  of  the  commencement 
of  each  enlargement  thereof,  with  the  increased  carrying  capacity 


WATER   RIGHT    LEGISLATION  59 

thereby  occasioned,  the  length  of  time  spent  in  such  construc- 
tion or  enlargement,  the  diligence  with  which  the  work  was  pros- 
ecuted, the  nature  of  the  work  as  to  difficulty  of  construction, 
and  all  such  other  facts  as  may  tend  to  show  compliance  with 
the  law  in  acquiring  the  priority  of  right  claimed  for  said  ditch, 
canal  or  reservoir;  and  upon  all  the  facts  so  obtained  shall  be 
determined  the  relative  priorities  among  the  several  ditches, 
canals  and  reservoirs,  the  volume  or  amount  of  water  lawfully 
appropriated  by  each  as  well  as  by  means  of  the  construction, 
as  to  the  enlargements  thereof,  and  the  time  when  each  such  sev- 
eral appropriations  took  place. 

After  closing  the  testimony  the  referee  prepares 
the  report  and  form  of  decree  and  files  it  with  the 
court,  which  after  properly  ordered  hearings  either 
approves  or  modifies  the  same. 

The  act  provides  in  detail  for  the  many  steps  in 
the  procedure  and  is  sound  from  the  technically  legal 
standpoint.  Jts  weakest  point  is  thai  it  does  not  pro- 
vide for  representation  of  the  public  or  the  state.  Many 
of  the  older  decrees  gave  to  each  party  the  amount  of 
water  claimed,  which  was  generally  far  in  excess  of 
the  maximum  capacity  of  the  ditch.  There  should 
have  been  measurements  by  the  state  engineer  of  the 
ditches  and  the  acreage  irrigated,  but  he  is  not  men- 
tioned in  the  act.  Furthermore,  the  districts  with 
which  the  act  deals  do  not  always  include  an  entire 
stream,  so  that  the  adjudication  in  such  cases  is  but 
partial.  Aside  from  the  trouble  caused  by  the  ex- 
cess decrees,  the  act  is  to  be  commended  as  providing 
at  so  early  a  period  in  the  history  of  irrigation  a  spe- 
cial procedure  whereby  most  of  the  rights  were  de- 
termined. 

Distribution  of  Water. — By  an  act  passed  in  1879 
Colorado  divided  its  irrigated  territory  into  a  number 
of  districts  generally  comprising  a  designated  creek, 
or  creeks,  and  tributaries.  For  each  district  there  was 
provided  a  water  commissioner  to  be  appointed  by  the 
governor  from  persons  recommended  by  the  boards  of 
county  commissioners  interested.  The  principal  duty 
of  the  water  commissioner  is  to  divide  the  waters  of  a 
stream  among  the  ditches  according  to  the  prior  rights 


60  WESTERN    WATER    LAW 

of  each,  and  in  so  doing  to  wholly  or  partially  shut 
the  headgates  of  the  later  appropriators  to  satisfy  the 
earlier  rights.  He  is  also  authorized  to  shut  off  the 
supply  from  any  ditch  so  that  the  water  delivered  will 
in  his  judgment  not  allow  a  wasteful  or  wrongful  use. 
The  changing  or  interference  with  any  headgate  ad- 
justed by  the  water  commissioner  is  a  misdemeanor 
subject  to  a  fine  of  $300,  or  an  imprisonment  of  60 
days,  or  both,  and  the  use  of  water  so  wrongfully  taken 
through  such  a  headgate  is  made  prima  facie  evidence 
of  the  guilt  of  the  user.  The  water  commissioners 
are  further  empowered  to  arrest  persons  meddling 
with  headgates  or  using  water  procured  through  such. 
The  salary  of  the  water  commissioner  is  $5  per  day  and 
is  paid  by  the  counties  served.  He  does  not  begin  work 
until  called  on  by  two  or  more  persons  controlling 
ditches  in  his  district,  or  by  the  division  engineer.  He 
may  engage  necessary  assistants  at  $2.50  per  day. 

In  1887  Colorado  was  divided  into  four  divisions 
along  drainage  lines  with  a  division  superintendent  in 
charge  of  each  division.  In  1903  the  number  was 
changed  to  five  and  the  title  to  division  engineers,  who 
are  now  appointed  by  the  governor  from  a  certified 
list  prepared  by  the  state  engineer  after  an  examina- 
tion of  applicants.  The  division  engineers  receive  $125 
per  month  when  actually  employed  and  traveling  ex- 
penses not  in  excess  of  $500  per  annum,  and  are  paid 
by  the  state.  The  division  engineers  have  general 
control  over  the  water  commissioners  of  the  several 
districts  within  their  divisions,  and,  under  the  general 
supervision  of  the  state  engineer,  execute  the  laws  rela- 
tive to  the  distribution  of  water.  They  may  make 
regulations  to  secure  the  fair  apportionment  of  water 
in  accordance  with  the  rights  of  priority.  They  are 
required  to  make  stream  measurements  and  rate 
ditches,  and  to  perform  such  other  duties  as  the  state 
engineer  may  direct.  Ditch  owners  feeling  them- 
selves injured  may  appeal  from  the  acts  of  water  com- 
missioner to  division  engineer  and  from  the  latter  to 
the  state  engineer. 


WATER    RIGHT    LEGISLATION  61 

It  will  be  readily  appreciated  that  the  task  of 
dividing  water  among  ditches  with  valuable  crops  at 
stake  is  a  serious  undertaking,  and  on  account  of  the 
daily  variations  in  the  flow  of  mountain  streams  re- 
quires much  local  study  and  experience.  _ColoradoJs 

/  plan  of  having  a  small  number  of  great  divisions  along 
/  drainage  lines  each  with  a  state  official  having  juris- 
diction therein,  and  a  number  of  districts  within  each 
division  of  such  size  that  the  diversions  may  be  regu- 
lated by  one  man  and  an  assistant  or  two,  was  not 
only  the  first  to  be  fixed  by  statute  but  remains  the 

\  type  to  be  followed  at  the  present  day. 

Wyoming. 

Acquirement  of  Rights. — The  office  of  territorial 
engineer  in  Wyoming  was  created  in  1886  but  the  ex- 
isting legislation  of  which  the  state  is  so  proud,  came 
with  statehood  in  1890.  By  constitutional  provision 
the  state  is  divided  into  four  divisions  (the  limits 
being  fixed  by  the  legislature)  with  a  division  super- 
intendent at  the  head  of  each,  the  office  of  state  engi- 
neer is  provided,  and  a  Board  of  Control  consisting 
of  the  state  engineer,  as  president,  and  the  four  divi- 
sion superintendents,  is  given  "supervision  of  the 
waters  of  the  State,  and  of  their  appropriation,  distri- 
bution and  diversion"  subject  to  legislation  thereon. 

The  statutes  adopted  in  1890  provide  a  method  of 
acquiring  rights  very  different  from  any  then  existing 
i.a.  this  country.  Instead  of  posting  a  notice  or  start- 
ing work  and  thus  initiating  a  right,  the  intending  ap- 
propriator  is  required  to  make  application  to  the 
state  engineer  for  permission  to  make  the  appropria- 
tion. The  application  is  made  on  a  blank  form  fur- 
nished by  the  state  engineer  and  among  other  things 
must  state  the  location  and  description  of  the  proposed 
ditch,  the  time  within  which  it  is  proposed  to  begin 
construction,  the  time  required  for  completion  of  con- 
struction and  the  time  required  for  complete  applica- 
tion of  water  to  proposed  use.  If  for  irrigation,  the 
application  must  also  give  the  legal  subdivisions  of 


62  WESTERN   WATER   LAW 

land  proposed  to  be  irrigated.  The  state  engineer 
must  approve  all  applications  made  in  proper  form 
and  for  beneficial  purposes  except  where  there  is  no 
unappropriated  water,  or  where  the  proposed  use  con- 
flicts with  existing  rights,  or  threatens  to  prove  detri- 
mental to  the  public  interest — in  which  cases  he  must 
reject  the  application. 

If  approved,  the  application  will  be  so  endorsed 
and  returned  to  the  applicant  and  constitutes  his  au- 
thorization to  begin  construction  and  perfect  the  ap- 
propriation. 

In  cases  of  applications  in  excess  of  25  second  feet, 
or  to  reclaim  over  1000  acres,  the  state  engineer,  be- 
fore acting  on  the  application,  may  require  additional 
information  in  regard  to  the  financial  ability  and  the 
good  faith  of  the  applicant.  In  the  endorsement  of 
approval  on  the  application  it  is  required  that  actual 
construction  must  begin  within  one  year  from  date 
of  approval  and  that  the  construction  must  be  com- 
pleted within  five  years.  The  state  engineer  has  au- 
thority to  limit  the  construction  period  and  the  period 
required  for  application  to  beneficial  use  to  a  less  time 
than  asked  for,  and  also,  for  good  cause  shown, 
to  extend  the  time  for  the  completion  of  works  under 
an  issued  permit.  Any  party  may  appeal  from  any 
action  taken  by  the  state  engineer  to  the  Board  of 
Control,  and  from  an  action  by  the  Board  to  the  dig- 
trict  court. 

Applications  must  be  accompanied  by  maps  pre- 
par^ed  in  accordance  with  the  regulations  of  the  state 
engineer,  and  profiles  and  plans  may  be  required  also. 

The  statutes  do  not  provide  the  nature  of  the 
proof  to  be  submitted  by  the  appropriator  on  the  com- 
pletion of  the  works  and  on  the  complete  application 
to  beneficial  use  other  than  it  "being  made  to  appear 
to  the  satisfaction  of  the  Board  of  Control  that  any 
application  has  been  perfected  in  accordance  with 
such  application,  and  the  endorsement  thereon."  On 
such  a  showing  the  Board  must  issue  a  certificate  set- 
ting forth  the  amount  of  the  appropriation  and  the 


WATER   RIGHT    LEGISLATION  63 

number  and  date  of  priority  thereof,  which  date  shall 
be  that  of  filing  the  application  in  the  office  of  the  state 
engineer. 

In  1903  a  statute  specially  providing  for  the  ap- 
propriation of  water  for  storage  in  reservoirs  was 
adopted.  The  steps  outlined  above  must  be  followed 
except  that  a  description  of  the  land  is  to  be  irrigated 
by  the  stored  water  is  not  required  in  the  primary,  or 
first,  permit.  Those  who  are  to  apply  the  water  to 
beneficial  use  may  secure  the  secondary  permit  allow- 
ing them  to  so  do.  The  latter  shall  not  be  given  until 
the  state  engineer  is  convinced  that  the  secondary  per- 
mittee has  a  sufficient  agreement  with  the  owner  of  the 
reservoir,  the  primary  permittee.  The  1903  statute 
also  provides  for  special  supervision  by  a  water  com- 
missioner when  such  stored  waters  are  allowed  to  run 
to  points  of  use  through  natural  channels  and  where 
loss  through  wrongful  diversion  is  probable  en  route. 
When  deemed  necessary  for  the  protection  of  the 
various  interests  involved,  the  state  engineer  may  ap- 
point an  assistant  engineer  to  superintend  and  direct 
the  construction  work  on  dams  for  such  reservoirs. 

Wyoming  has  thus  introduced  a  sensible  business- 
like procedure  for  controlling  new  rights  to  the  use  of 
water.  Those  accustomed  to  the  absolute  want  of  super- 
vision in  states  still  following  the  California  method  of 
posting  notices  are  inclined  to  be  suspicious  of  the  Wy- 
oming method  when  first  brought  before  them.  They 
are  especially  fearful  of  the  seeming  great  authority 
in  the  hands  of  the  state  engineer.  An  inspection  of 
the  records,  however,  will  show  so  few  applications 
rejected  in  Wyoming  that  the  number  is  negligible. 
As  the  question  of  whether  there  are  any  unappro- 
priated waters  in  a  stream  is  so  debatable  and  as  the 
opportunity  for  flood  waters  and  seepage  and  return 
waters  is  so  great,  the  state  engineer,  in  cases  wheic 
there  seems  to  be  but  little  surplus  approves  the  ap- 
plication with  the  following  notice  stamped  upon  it : 

The  records  of  the  state  engineer's  office  show  the  waters  of 
to  be  largely  appropriated.  The  appro- 


*4  WESTERN   WATER    LAW 

priator  under  this  permit  is  hereby  notified  of  this  fact  and 
that  the  issuance  of  this  permit  grants  the  right  to  divert  and 
use  the  surplus  or  waste  water  of  the  stream  and  confers  no 
rights  which  will  interfere  with  or  impair  the  use  of  water 
by  prior  appropriators. 

Definition  of  Rights. — Although  new  to  American 
legislation  the  Wyoming  method  for  the  acquirement 
of  rights  is  far  less  novel  than  her  method  for  the 
definition  of  rights.  In  1886  Wyoming,  then  a  terri- 
tory, adopted  the  Colorado  system  of  adjudication 
but  rejected  it  in  1891  for  its  present  system. 

Instead  of  leaving  the  determination  of  water 
rights  to  chance  cases  between  two  or  more  claimants 
as  in  California,  or  to  a  special  procedure  initiated 
by  a  claimant  as  in  Colorado,  Wyoming,  having  by  its 
constitution  declared  the  natural  waters  to  be  the 
property  of  the  state,  decided  to  make  its  new  Board 
of  Control  responsible  for  this  most  important  matter. 

The  Board  selects  the  streams  on  which  rights  are 
-  -  ,  to  be  determined  and  fixes  a  time  for  the  taking  of 
testimony.  The  state  engineer  through  assistants  makes 
a  survey  of  the  ditches  and  the  land  irrigated  or  irriga- 
ble thereunder  and  measures  the  stream  and  carrying 
capacity  of  the  ditches.  A  printed  form,  called  "proof 
of  appropriation,"  is  sent  to  each  claimant.  The  pres- 
ent practice  is  to  have  the  division  superintendent 
make  the  survey  and  have  the  claimant  make  the 
"proof  of  appropriation"  on  the  completion  of  the 
survey  of  his  individual  holding,  so  that  the  "proofs" 
and  survey  will  correspond. 

On  the  completion  of  the  survey  and  the  taking 
of  testimony  or  "proofs"  by  the  division  superintend- 
ent, notice  is  given  of  a  time  and  place  at  which  the 
evidence  thus  assembled  shall  be  open  to  inspection 
of  the  various  claimants.  A  regular  procedure  is  pro- 
vided for  contests  and  hearings  before  the  division 
superintendent,  if  such  are  required  after  the  open 
inspection. 

After  the  contests  all  the  evidence,  including 
original  proofs  and  testimony  taken  at  the  subsequent 
hearings,  is  transmitted  to  the  Board  of  Control.  At 


WATER    RIQHT    LEGISLATION  65 

its  first  regular  meeting  thereafter,  jthe  Board  exam- 
ines all  the  evidence  and  enters  an  order  establishing 
the  priorities  of  the  water  rights,  their  amounts,  and 
the  character  of  use  of  each.  For  irrigation  rights, 
the  maximum  allowance  is  one-seventieth  of  a  second 
foot  to  the  acre.  Certificates  are  issued  to  each  claim- 
ant in  accordance  with  the  order  of  the  Board.  Ap- 
peals from  the  order  may  be  taken  to  the  district  court 
within  sixty  days. 

Distribution  of  Water. — As  stated  above,  Wyom- 
ing has  been  divided  into  jour  divisions  along  drain- 
age lines.  The  _sugertoend^nti^tHeireof  have  powers 
similar  to  those  of  the  division  engineers  in  Colorado, 
regarding  the  division  of  the  waters  among  ditches 
entitled  thereto.  The  Board  of  Control  creates  dis- 
tricts where  necessary  and  these  districts  are  in  charge 
of  water  commissioners  upon  whom  the  actual  duty  of 
closing  headgates  rests.  The  entire  Wyoming  pro- 
cedure in  regard  to  this  matter  is  copied  from  that  of 
Colorado  and  what  difference  exists  is  only  in  minor 
details. 

Nebraska. 

In  1889  Nebraska  adopted  legislation  providing 
for  the  appropriation  of  water  by  posting  notices  as 
in  California,  but  in  .1895  introduced  an  entirely  new 
system  closely  following  that  of  Wyoming.  As  the 
State  at  that  time  was  in  financial  straits  it  aimed 
to  create  as  few  new  offices  as  possible  and  therefore 
provided  that  its  state  board  of  irrigation  should  be 
composed  of  the  governor,  attorney-general,  and  the 
commissioner  of  public  lands  and  buildings.  In  1911 
the  name  of  the  board  was  changed  to  "The  State 
Board  of  Irrigation,  Highways  and  Drainage."  The 
board  appoints  an  hydraulic  engineer  as  secretary 
and  he  is  known  as  the  state  engineer.  The  strik- 
ing difference  between  the  statutes  of  Wyoming  and 
Nebraska  is  the  comparative  brevity  of  the  latter — 
otherwise  the  Wyoming  language  is  closely  followed. 

Acquirement  of  Rights. — The  sections  providing 
for  the  acquirement  of  rights  are  practically  the  same 


66  WESTERN    WATER   LAW 

as  those  of  Wyoming.  The  application  is  made  to  the 
board  (the  secretary,  or  state  engineer,  acting  for  the 
board)  on  a  printed  form  furnished  by  the  state  engi- 
neer, and  when  in  proper  form  is  approved  "if  there 
is  unappropriated  water  in  the  source  of  supply  *  *  * 
and  if  such  appropriation  is  not  otherwise  detrimental 
to  the  public  welfare."  It  is  elsewhere  further  pro- 
vided, however,  that  "if  a  prior  appropriation  has  been 
made  to  water  the  same  land  to  be  watered  by  the 
applicant"  the  application  shall  be  rejected. 

It  was  undoubtedly  intended  by  those  who  drafted 
the  section  that  a  "prior  appropriation"  meant  a  per- 
fected appropriation — that  is  actual  use,  or  potential 
use,  of  water  on  the  land.  It  is  rather  an  empty  ex- 
pression from  any  practical  point  of  view  and  is  one 
instance  where  the  Wyoming  section  was  not  followed. 
Unfortunately  for  the  state  the  expression  was  con- 
strued by  its  Supreme  Court  in  Farmers'  Irrigation 
District  v.  Frank  (100  N.  W.  286)  and  it  was  held 
that  the  board  could  not  approve  an  application  to 
irrigate  any  land  described  in  an  approved  applica- 
tion. As  the  law  did  not  provide  that  an  applicant 
must  make  any  showing  of  his  title  or  interest  in  the 
land  described,  the  effect  of  the  decision  was  to  de- 
prive one  of  his  right  to  appropriate  water  for  the 
simple  reason  that  some  promoter  had  described 
his  land  in  a  former  application  which  had  been  ap- 
proved without  any  notice  to  the  land  owner. 

In  the  case  cited,  Frank  had  described  thousands 
of  acres  belonging  to  residents  of  the  Farmers'  Irri- 
gation District.  The  case  was  decided  in  1904  and 
although  it  evoked  bitter  criticism  from  those  deprived 
of  what  they  believed  to  be  a  "natural  right"  the  sec- 
tion was  not  amended  until  1911,  when  the  following 
words  were  inserted,  "  *  *  *  2nd  no  permit  to  irri- 
gate any  land  shall  be  allowed  unless  the  owner  or 
owners  of  such  land  shall  give  consent  to  the  same 
in  proper  form,  duly  acknowledged  before  some  offi- 
cer legally  qualified  to  take  acknowledgements." 


WATER   RIGHT    LEGISLATION  67 

Definition  of  Rights. — The  "definition  of  the  pri- 
orities of  right  to  use  the  public  waters  of  the  state" 
is  left  to  the  board  of  irrigation.  Instead  of  fixing 
a  detailed  procedure  as  in  Wyoming  the  statute  pro- 
vides that  "the  method  of  determining  the  priority  and 
amount  of  appropriation  shall  be  determined  by  the 
said  state  board."  The  board  accordingly  has 
adopted  rules  to  govern  the  taking  of  "proofs  of  ap- 
propriation" and  hearings  in  cases  of  contests. 

As  in  the  case  of  applications  to  acquire  rights, 
the  real  work  is  left  to  the  state  engineer.  Most  of 
the  determinations  of  the  old  rights  have  been  made 
without  actual  surveys  by  the  state  engineer.  The 
state  was,  therefore,  quickly  covered,  but  it  is  prob- 
able that  in  some  cases  larger  acreages  were  allowed 
than  should  have  been. 

After  the  completion  of  the  determination  "certifi- 
cates of  appropriation"  are  issued  to  appropriators, 
as  in  Wyoming,  the  maximum  allotment  for  irriga- 
tion being  one  second  foot  for  each  70  acres  and  in  no 
case  to  exceed  three  acre  feet  per  year  (as  amended 
in  1911).  Appeals  may  be  taken  to  the  district  court 
within  60  days  of  the  determination. 

Distribution  of  Water. — The  system  for  dividing 
water  among  the  ditches  entitled  to  its  use  is  the  same 
as  in  Colorado  and  Wyoming.  By  statute  the  state 
has  been  divided  into  two  divisions  with  division  su- 
perintendents in  charge.  Before  1911  the  title  was 
"under-secretary." 

Prior  to  1911  the  state  board  created  districts  within 
the  division  on  the  petition  of  interested  parties,  but 
in  1911  the  board  was  empowered  to  divide  the  divi- 
sions into  subdivisions  and  the  latter  into  districts  as 
they  believed  necessary.  The  board  appoints  one 
water  commissioner  for  each  district.  (Prior  to  1911 
the  title  was  "under-assistant.")  In  1911  it  was  pro- 
vided that  appropriators  on  April  first  of  each  year 
must  give  the  division  superintendent  a  list  of  the 
lands  to  be  watered  during  the  year. 


68  WESTERN   WATER    LAW 

Idaho. 

The  office  of  state  engineer  was  created  in  Idaho 
in  1895,  but  his  duties  were  principally  in  regard 
to  operations  under  the  Carey  Act  until  the  adoption 
of  the  "new  legislation"  in  1903. 

Acquirement  of  Rights.— Idaho  follows  the  sys- 
tem introduced  by  Wyoming  of  making  intending 
appropriators  apply  to  the  state  engineer  on  printed 
forms  furnished  by  him.  The  instructions  issued  by  the 
state  engineer  state  that  "application  will  not  be  ac- 
cepted nor  permit  granted  thereunder,  unless  the 
following  instruction  are  carefully  carried  out,  in 
preparing  the  application  blank  and  maps" — it  being 
required  that  duplicate  maps  must  be  filed  before 
the  permit  will  be  granted  and  where  the  application 
is  for  more  than  25  second  feet  the  maps  must  be  pre- 
pared from  actual  surveys. 

As  the  Idaho  constitution  provides  that  "The  right 
to  divert  and  appropriate  the  unappropriated  waters 
of  any  natural  stream  to  beneficial  uses,  shall  never  be 
denied,"  the  right  of  rejecting  applications  deemed 
detrimental  to  the  public  welfare,  etc.,  has  not  been 
delegated  to  the  state  engineer,  but  he  must  approve 
all  applications  made  in  proper  form  and  contem- 
plating application  to  beneficial  use. 

The  maximum  allowance  for  irrigation  purposes 
is  one  second  foot  to  50  acres,  and  the  maximum  time 
allowance  to  complete  the  construction  of  works  is 
five  years  and  that  for  applying  water  to  beneficial  use 
four  years  in  addition  thereto.  (The  state  engineer  has 
no  authority  to  extend  the  maximum  time  allowance. 
Such  authority  is  given  in  other  states  and  should 
be  as  the  limits  set  are  too  small  for  the  larger  pro- 
jects.) It  is  further  required  that  one-fifth  of  the  con- 
struction work  shall  be  done  in  one-half  the  time 
allowed  and  adverse  claimants  may  contest  the  right 
when  this  is  not  done.  For  appropriations  not  in  ex- 
cess of  25  second  feet  construction  work  must  be  com- 
menced within  sixty  days  of  issuance  of  the  permit, 
and  for  other  appropriations  a  bond  in  an  amount  to 
be  fixed  by  the  state  engineer,  not  exceeding  $10,000, 


WATER    RIGHT    LEGISLATION  69 

must  be  filed  within  the  said  sixty  days  with  the  state 
engineer  as  a  guarantee  that  the  work  will  be  com- 
pleted as  provided  in  the  permit. 

The  1903  Idaho  statute  was  the  first  to  provide  a 
regular  procedure  for  proofs  of  completion  of  con- 
struction and  also  proofs  of  complete  application  to 
beneficial  use.  At  least  sixty  days  prior  to  the  date 
set  for  the  completion  of  the  works  the  holder  of  the 
permit  must  notify  the  state  engineer  of  readiness 
to  submit  proof,  on  a  form  furnished  by  him  contain- 
ing among  other  information  the  amount  of  water  such 
works  can  carry  and,  if  for  irrigation,  the  description 
of  the  land  which  can  be  irrigated.  In  cases  of  diver- 
sions in  excess  of  50  second  feet  the  facts  set  forth 
in  the  notice  must  be  certified  to  by  a  competent  irri- 
gation engineer.  The  notice  is  published  by  the  state 
engineer  in  a  paper  of  general  circulation  in  county 
where  works  are  situated  and  such  publication  also 
states  the  time  and  place  of  submission  of  final  proof. 
Before  the  time  set  the  state  engineer  has  the  works 
inspected  and  after  such  time,  and  the  consideration 
of  any  protests  which  may  be  made,  he  issues  a  cer- 
tificate stating  among  other  things  the  purpose  of 
works,  the  quantity  of  water  which  can  be  carried  to 
place  of  use,  and,  if  for  irrigation,  a  description  of  the 
lands  for  which  water  has  been  made  available  by  the 
works. 

The  same  procedure  is  followed  in  submitting 
proof  of  complete  application  to  beneficial  use.  If 
satisfied  that  the  law  has  been  complied  with  after 
an  examination  of  all  the  evidence  in  relation  to  such 
final  proof,  the  state  engineer  issues  a  license  confirm- 
ing such  use.  The  date  of  priority  of  right  under  such 
license  is  that  of  filing  of  application  in  state  engi- 
neer's office. 

Adjudication  of  Rights.— The  1903  Idaho  statute 
left  the  adjudication  of  water  rights  to  the  courts,  but 
provided  that  actions  could  be  initiated  by  a  water 
commissioner  for  the  adjudication  of  rights  to  the 
waters  ot  a  stream  which  had  been  partly  adjudicated. 


70  WESTERN   WATER    LAW 

It  was  also  provided  that  whenever  a  suit  to  adjudi- 
cate rights  is  filed  the  court  "shall  request  the  state 
engineer  to  make  an  examination  of  such  stream,  and 
the  canals  and  ditches  diverting  water  therefrom,  and 
of  all  the  land  being  irrigated  by  such  canals  and 
ditches  and  other  works,"  and  the  map  and  report 
resulting  from  such  examination  shall  be  "accepted 
as  evidence  in  the  determination  of  such  rights  by 
such  court." 

The  provision  for  the  initiation  of  actions  by  a 
water  commissioner  was  declared  unconstitutional  in 
Bear  Lake  v.  Budge  (75  Pac.  615).  In  Boise  City  Irriga- 
tion &  Land  Company  v.  Stewart  (77  Pac.  25)  the  pro- 
vision for  requesting  the  state  engineer  to  examine 
and  report  upon  the  physical  conditions  was  held  to 
be  merely  directory  and  not  mandatory.  The  prepa- 
ration of  physical  data  by  the  state  engineer  has  been 
so  satisfactory,  however,  that  it  is  certain  that  the 
court  will  request  his  services  in  most  cases.  The 
costs  of  his  work  are  apportioned  by  the  court  among 
the  parties  to  the  suit,  become  a  lien  against  the  real 
property  in  question,  and,  if  necessary,  are  collected 
as  ordinary  taxes. 

Distribution  of  Water. — "For  the  purpose  of  admin- 
istering and  controlling  the  public  waters,"  Idaho  is 
divided  into  three  water  divisions  with  limits  fixed 
by  statute.  The  governor  appoints  a  water  commis- 
sioner for  each  division.  The  three  water  commis- 
sioners and  the  state  engineer  compose  the  state  board 
of  irrigation.  The  board  "shall  devise  all  needful  rules  / 
for  the  distribution  of  water."  It  divides  the  divisions/' 
into  water  districts  for  which  water  masters  are  electe^ 
by  the  water  users  of  the  district. 

Utah. 

As  the  first  Mormon  settlements  in  Utah  were 
absolutely  dependent  upon  agriculture,  and  that  upon 
irrigation,  the  need  of  legislation  regarding  water 
rights  was  early  recognized.  The  first  territorial  legis- 
lature, in  1852,  gave  the  control  of  all  "water  privi- 
leges" to  the  county  courts  and  authorized  them  to 


WATER    RIGHT    LEGISLATION  71 

"exercise  such  powers  as  in  their  judgment  shall  best 
*  *  *  subserve  the  interests  of  the  settlements  in 
the  distribution  of  water  for  irrigation  or  other  pur- 
poses." The  court  of  Salt  Lake  County  was  the  only 
one  to  act  under  the  statute  and  it  granted  water  rights, 
settled  disputes  in  regard  thereto  and  appointed  water 
masters  to  distribute  water  according  to  decrees.  The 
court  at  that  very  early  date  acted  about  as  the  Board 
of  Control  does  in  Wyoming  today,  and  if  the  other 
county  courts  had  done  likewise  there  would  have 
been  no  need  of  further  legislation. 

Due  to  the  neglect  of  the  courts,  other  than  that 
of  Salt  Lake  County,  to  enforce  the  law,  other  legis- 
lation was  adopted  in  1880  and  in  1897 — the  latter 
following  the  California  statutes.  The  office  of  state 
engineer  was  also  created  in  1897  but  he  had  little  au- 
thority regarding  water  rights  until  1903  when  the 
present  statute  was  adopted. 

Acquirement  of  Rights. — The  present  system  of 
acquiring  water  rights  in  Utah  is  based  on  that  of 
Wyoming  and  Nebraska.  The  application  contains  the 
additional  information  of  "the  time  during  which  it 
(the  water)  is  to  be  used  each  year" — that  is  the  right 
is,  or  may  be,  restricted  to  certain  periods  within  the 
year.  A  notice  of  the  application  must  be  published 
for  30  days  in  a  newspaper  of  general  circulation  within 
the  watershed  so  that  a  protest  may  be  made  to  the 
state  engineer  by  parties  claiming  prospective  injury 
and  thus  assist  him  in  determining  whether  the  new 
appropriation  will  conflict  with  existing  rights. 

The  1903  statute  provided  for  a  hearing  in  case  of 
protests,  but  in  1904  such  a  procedure  was  prohibited 
by  court  order.  No  appeal  was  taken  to  the  supreme 
court  and  the  provision  was  omitted  when  the  law 
was  re-enacted  in  1905. 

The  1903  statute  also  authorized  the  state  engi- 
neer to  reject  an  application  which  he  deemed  detri- 
mental to  the  public  welfare.  Following  such  an  ac- 
tion in  1904  the  state  engineer  was  reversed  by  court 
decree  and,  again,  the  case  was  not  appealed  and  the 


72  WESTERN   WATER   LAW 

provision  was  omitted  in  the  1905  statute.  By  an 
amendment  of  1911,  the  state  engineer  must  approve 
all  applications  except  where  they  will  conflict  with 
existing  rights,  or  where,  after  submission  of  the 
question  to  court,  the  latter  decides  that  the  applica- 
tion is  not  for  the  most  beneficial  use  of  the  water. 
The  question  of  "best  beneficial  use"  and  the  feasi- 
bility of  projects  is  to  be  answered  by  data  being  col- 
lected by  a  Conservation  Commission. 

By  an  amendment  of  1911  Utah  follows  the  Idaho 
/  statutes  regarding  time  of  beginning  and  completing 
work  and  application  to  beneficial  use,  but  the  state 
engineer  is  authorized,  for  good  cause  shown,  to  ex- 
tend the  five-year  and  four-year  periods  to  a  maximum 
aggregate  allowance  of  fourteen  years  from  date  o/ 
V    approval  of  application. 

Proof  of  completion  of  work  is  made  on  regular 
forms,  attested  by  two  witnesses,  and  accompanied 
by  certified  detailed  maps.  The  state  engineer  issues 
a  certificate  of  appropriation  when  satisfied  that  "the 
appropriation  has  been  effected. " 

Adjudication  of  Rights. — Under  the  system 
adopted  in  1903  the  adjudication  of  rights  is  initiated 
by  the  state  engineer  making  a  complete  survey  of 
the  "river  system  or  water  source"  and  collecting  all 
necessary  data.  After  completion  of  survey  a  state- 
ment is  filed  with  clerk  of  district  court  who  mails 
form  for  statement  of  claim  to  each  claimant.  The 
state  engineer  tabulates  the  claims  and  files  such  with 
clerk  of  court.  The  court  may  appoint  a  referee  to 
t?ke  further  testimony.  The  decree  is  rendered  by  the 
court  based  on  the  maps  and  data  of  state  engineer, 
the  statements  of  claims,  and  the  testimony  taken 
before  referee.  A  certificate  is  issued  to  each  owner 
in  accordance  with  the  decree. 

The  system  has  not  yet  been  fairly  tried  as  the 
surveys  and  collection  of  data  have  not  been  com- 
pleted for  the  first  stream  chosen — the  Weber  River. 
The  early  work  was  done  on  an  elaborate  scale,  and 
the  funds  necessary  for  completion  are  not  available. 


WATER   RIGHT    LEGISLATION  73 

Distribution  of  Water. — The  state  engineer  is 
authorized  to  divide  the  state  into  water  districts  and 
a  water  commissioner  is  appointed  by  the  governor 
for  each  district  from  persons  recommended  by  the 
state  engineer.  These  water  commissioners  have  the 
same  duties  as  in  the  states  already  discussed,  the 
only  innovation  is  that  the  state  has  not  been  divided 
into  large  divisions  with  superintendents  in  control. 

Nevada. 

Nevada  first  legislated  regarding  water  claims  in 
1866  when  it  provided  for  the  filing  of  certificates  and 
plats  by  intending  appropriators.  Further  legislation 
was  adopted  in  1889  and  in  1899 — the  latter  being 
copied  after  the  Wyoming  statute,  but  as  the  county 
instead  of  the  state  was  made  the  unit  nothing  was 
done.  In  1903  through  the  efforts  of  Senator  New- 
lands  who  had  been  probably  the  foremost  leader  in 
securing  the  passage  of  the  National  Reclamation  Act 
of  June  17,  1902,  the  Nevada  legislature  created  the 
office  of  state  engineer  and  provided  for  the  definition 
of  water  rights  and  the  distribution  of  water.  The  in- 
fluence of  the  expected  benefits  of  the  Reclamation 
Act  on  the  passage  of  the  1903  Nevada  act  is  shown 
by  the  preamble  to  the  latter,  wherein  the  entire  Re- 
clamation Act  is  recited  and  in  addition  many  para- 
graphs presenting  the  opportunities  for  irrigation  de- 
velopment in  Nevada  and  the  need  of  a  determina- 
tion of  rights  before  national  aid  could  be  given. 

Acquirement  of  Rights. — The  1903  statute  con- 
tained no  provision  for  the  acquirement  of  rights  but 
it  was  supplemented  in  1905  by  sections  so  providing 
copied  from  the  Wyoming  and  Nebraska  statutes  and 
containing  the  requirement  of  publication  first  adopted 
Li  Utah.  In  1907  the  maximum  quantity  which  could 
be  appropriated  for  irrigation  purposes  was  fixed  at 
three-acre-feet  per  acre  per  year.  This  maximum 
annual  allowance  was  changed  in  1909  as  follows : 

In  all  parts  of  the  state  where  water  cannot  be  beneficially 
used  for  irrigation  for  a  greater  period  than  six  months  each 
year  the  maximum  quantity  appropriated  for  each  acre  shall  not 


74  WESTERN   WATER   LAW 

exceed  three  (3)  acre-feet  per  annum.  In  all  parts  of  the  state 
where  water  is  beneficially  used  for  irrigation  for  a  period  of 
nine  months  or  more  in  each  year,  the  maximum  quantity  of 
water  that  may  be  appropriated  shall  not  exceed  three  (3)  acre- 
feet  for  the  five  months  beginning  May  15th  and  extending  to 
October  15th  of  each  year,  for  each  acre  of  land  supplied,  and 
the  maximum  quantity  of  water  that  may  be  appropriated  for 
each  acre  during  the  remainder  of  each  year  shall  not  exceed  one- 
half  of  one-acre  foot  multiplied  by  the  number  of  months  of 
each  year  other  than  the  five  months  hereinbefore  named,  during 
which  water  is  so  beneficially  used 

Definition  of  Rights.— The  1903  statute  provided 
a  method  for  defining  rights  which  is  still  in  force  and 
which  follows  the  Wyoming  system  except  that  no  de- 
tails of  procedure  are  prescribed.  JThe  state  engineer, 
is  alone  responsible  for  the  work.  He  makes  the  sur- 
veys, collects  the  necessary  data,  tabulates  the  "proofs 
of  appropriation"  submitted  by  claimants,  determines 
the  priority  and  amount  of  each  claim,  and  finally 
issues  a  certificate  to  each  water  right  owner.  The 
1903  act  allowed  two  years  after  the  determination 
in  which  aggrieved  parties  might  bring  action  in  the 
courts,  but  the  time  was  reduced  to  .one  year  in  1907.' 

Distribution  of  Water. — In  1901  a  state  board  of 
irrigation  consisting  of  the  governor,  attorney-general 
and  surveyor-general  was  created  to  co-operate  with 
federal  bureaus  in  stream  gauging  and  irrigation  in- 
vestigations. In  1903  the  state  engineer  was  made  a 
member  and  secretary  of  the  board.  The  board  has 
authority  to  divide  the  state  "into  such  water  divi- 
sions or  water  districts  as  seem  to  it  advisable,"  and 
may  appoint  water  commissioners  to  divide  the  waters 
of  streams  according  to  priorities. 

New   Mexico,   North    Dakota,   Oklahoma   and   South 
Dakota. 

In  accordance  with  resolutions  adopted  by  the 
legislatures  of  Oregon  and  Washington  in  1903  a 
commission  was  appointed  by  the  governor  of  each 
state  to  draft  a  water  code.  As  a  result  of  a  joint  ses- 
sion of  the  two  commissions  with  officials  of  the  United 
States  Reclamation  Service,  Mr.  Morris  Bien,  super- 


WATER   RIGHT    LEGISLATION  75 

vising  engineer  of  the  Service  in  charge  of  land  and 
legal  matters,  agreed  to  prepare  a  draft  for  the  com- 
missions. Mr.  Bien's  draft  was  widely  circulated  in 
order  to  receive  the  benefit  of  the  criticism  of  many 
interested  in  the  subject.  The  corrected  draft  is  gen- 
erally referred  to  as  the  "Bien  Code,"  and  although  Mr. 
Bien  aimed  to  take  what  he  considered  best  from  all 
the  existing  codes,  most  closely  follows  the  1903  Utah 
statute.  It  was  not  adopted  in  Oregon  and  Washing- 
ton but  was  in  North  Dakota,  Oklahoma  and  South 
Dakota  in  1905  and  in  New  Mexico  in  1907. 

Acquirement  of  rights.  As  provided  in  the  1903 
Utah  statute,  applications  must  be  made  to  the  state 
engineer  who,  for  stated  causes,  has  the  power  of  re- 
jection. Notice  of  application  is  published  and  evi- 
dence of  interested  parties  considered.  In  case  of 
approval  the  state  engineer  fixes  the  time  for  comple- 
tion of  works  and  for  application  to  beneficial  use,  not 
exceeding  five  years  and  four  years  additional  respect- 
ively from  date  of  approval.  He  has  the  power,  for 
causes  stated,  to  extend  such  times  three  years  and  two 
years  respectively.  Regarding  the  proof  of  completion 
of  works  and  application  to  beneficial  use  the  code 
follows  Idaho. 

Adjudication  of  rights.  That  part  of  the  code  deal- 
ing with  the  determination  of  water  rights  is  restricted 
to  five  short  sections.  The  state  engineer  makes 
"hydrographic  surveys  and  investigations  of  each 
stream  system  *  *  *  obtaining  and  recording  all 
available  data  for  the  determination,  development  and 
adjudication  of  the  water  supply  of  the  state."  Upon 
completion  of  survey,  the  state  engineer  delivers  what 
data  is  deemed  necessary  to  the  attorney  general  who 
enters  "suit  on  behalf  of  the  state  for  the  determina- 
tion of  all  rights  to  the  use  of  such  water,  in  order  that 
the  amount  of  unappropriated  water  subject  to  disposi- 
tion by  the  state  under  the  terms  of  this  act  may  be- 
come known." 

In  any  suit  over  water  rights  all  claimants  must  be 
made  parties  and  when  such  suit  is  filed,  the  court  shall 
direct  the  state  engineer  to  make  surveys  and  assemble 


76  WESTERN    WATER   LAW 

the  necessary  data.  The  aim  of  the  sections  is  to  allow 
the  state  engineer  to  secure  a  determination  of  the 
rights  on  streams  most  used  for  irrigation  and  also 
to  provide  for  a  complete  determination  on  those 
streams  where  suit  is  entered  by  private  parties. 

Distribution  of  Water.  The  distribution  of  water 
is  cared  for  as  in  the  states  previously  discussed.  The 
state  is  divided  by  the  legislature  into  three  or  more 
divisions  along  drainage  lines.  A  commission  is  ap- 
pointed for  each  division  and  the  commissioners  with 
the  state  engineer  form  the  board  of  water  commis- 
sioners. The  state  engineer  divides  each  division  into 
districts  and  the  commissioner  appoints  a  water  master 
for  each  district. 

Oregon. 

As  stated  above,  Oregon  appointed  a  "water  code 
commission"  in  1903,  but  little  was  done  at  the  1905 
session  of  the  legislature  beyond  creating  the  office  of 
state  engineer.  In  1907  a  second  commission  recom- 
mended the  "Bien  Code"  but  it  did  not  pass.  In  1909, 
following  the  recommendation  of  a  commission  which 
had  at  its  disposal  the  able  assistance  of  Clarence  T. 
Johnston,  then  State  Engineer  of  Wyoming,  a  code 
was  adopted  which  varies  but  little  from  that  of 
Wyoming. 

The  state  is  divided  into  two  water  divisions  with 
a  division  superintendent  in  charge.  The  two  super- 
intendents and  the  state  engineer  form  the  board  of 
control.  Contrary  to  the  uniform  practice  elsewhere 
all  three  offices  are  elective  instead  of  appointive. 

The  only  striking  departure  from  the  Wyoming 
system  is  the  procedure  for  defining  rights.  The  sec- 
tions in  regard  thereto  are  almost  word  for  word  the 
Wyoming  sections  up  to  and  including  the  determina- 
tion of  rights  by  the  board  of  control.  Instead  of  consid- 
ering such  final  unless  appealed  from,  the  Oregon  stat- 
ute provides  that  a  certified  copy  of  the  determination 
and  the  original  evidence  shall  be  filed  with  the  clerk  of 
the  circuit  court  which  fixes  a  time  for  hearing  the  de- 
termination. The  court  after  the  necessary  hearings 


WATER    RIGHT    LEGISLATION  77 

either   affirms   or   modifies   the   determination   of  the 
board. 

A  minor  difference  in  the  method  of  adjudication 
is  that  the  determination  in  Oregon  is  initiated  not  by 
the  boarcTof  its  own  motion  but  by  petition  of  one 
or  more  water  users  upon  the  stream.  As  the  board 
always  has  before  it  more  petitions  for  determinations 
than  it  can  act  upon,  it  is  clear  that  the  change  in 
procedure  is  of  no  practical  importance. 

The  new  legislation  adopted  in  the  western  states 
prior  to  the  1909  statute  in  Oregon,  is  silent  in  regard 
to  riparian  rights,  although  such  rights  are  recognized 
in  Nebraska  and  the  Dakotas.  The  Oregon  statute, 
however,  provides  that  the  use  of  riparian  proprietors 
shall  be  limited  to  the  extent  of  the  beneficial  use  prior 
to  the  passage  of  the  act  or,  where  works  were  under 
construction  at  the  date  of  passage,  to  the  amount  of 
v/ater  applied  to  beneficial  use  in  a  reasonable  time 
as  fixed  by  the  board  of  control.  This  part  of  the  stat- 
ute is  of  very  doubtful  validity  as  it  is  generally  un- 
derstood that  the  legislature  is  powerless  to  limit  a 
vested  right  and  the  riparian  right  does  not  depend 
upon  use. 

Review  of  Legislation. 

In  May,  1904,  the  state  engineers  of  the  eight 
states  then  having  the  office  formed  the  Association 
.  of  State  Engineers.  The  first  regular  meeting  was 
held  at  Boise,  Idaho,  in  September,  1904.  As  a  result 
of  a  close  examination  of  the  provisions  of  the  various- 
statutes  it  was  then  agreed  that  the  only  difference  of 
importance  was  in  the  method  of  determining  rights, 
and  the  same  view  is  held  today. 

In  Wyoming,  Nebraska  and  Nevada  rights  are  de- 
termined by  a  state  engineer  or  engineering  board, 
subject  to  review  by  the  courts  on  appeal.  The  method 
has  the  advantage  of  freedom  from  embarrassing  pro- 
cedure as  the  officials  collect  the  necessary  field  data 
and  proofs  and  are  so  familiar  with  the  essentials  that 
the  irrelevant  is  summarily  eliminated.  The  rights 
are  accordingly  determined  with  comparative  speed 
and  at  low  cost. 


78  WESTERN   WATER    LAW 

In  Colorado,  Idaho,  Utah,  North  Dakota,  Okla- 
homa, South  Dakota  and  New  Mexico  adjudications 
are  made  by  the  courts  after  the  assembling  of  physical 
data  by  the  state  engineer — except  in  Colorado  where 
the  state  engineer  has  no  connection  with  the  adjudi- 
cation. The  chief  argument  of  the  proponents  of  this 
legislation  is  that  no  other  method  is  legally  sound. 
It  so  happens,  however,  that  the  board  or  adminis- 
trative method  has  been  upheld  by  the  supreme  courts 
of  Wyoming  and  Nebraska,  and  the  court  method  has 
been  held  unconstitutional  in  Idaho — the  only  case 
in  which  it  has  been  before  the  courts  (again  except- 
ing Colorado). 

The  constitutionality  of  the  Wyoming  statute  pro- 
viding for  the  new  system  of  defining  rights  was  ques- 
tioned in  Farm  Investment  Company  v.  Carpenter 
(61  Pac.  266)  decided  May  26,  1900— after  the  statute 
had  been  in  operation  ten  years.  The  Supreme  Court 
in  upholding  the  statute  made  the  following  pertinent 
statement  regarding  the  efficiency  of  the  two  methods : 

As  between  an  investigation  in  the  courts  and  by  the  board, 
it  would  seem  that  an  administrative  board,  with  experience  and 
peculiar  knowledge  along  this  particular  line,  can,  in  the  first  in- 
stance, solve  the  questions  involved,  with  due  regard  for  private 
and  public  interests,  conduct  the  requisite  investigation,  and 
make  the  ascertainment  of  individual  rights,  with  greater  facil- 
ity, at  less  expense  to  interested  parties,  and  with  a  larger  de- 
gree of  satisfaction  to  all  concerned. 

In  the  same  case  it  was  contended  that  although 
the  system  might  be  valid  for  defining  rights  which 
had  accrued  subsequent  to  the  adoption  of  the  con- 
stitution, it  was  certainly  invalid  for  defining  rights 
accruing  prior  thereto  and  the  Court  answered : 

It  follows  from  what  has  already  been  said  that  in  this  re- 
gard there  exists  no  difference  between  claimants  whose  rights 
accrued  prior  to,  and  those  acquiring  rights  after,  the  adoption 
of  the  constitution  and  the  statute  in  question. 

In  Crawford  v.  Hathaway  (93  N.  W.  781)  the 
validity  of  the  Nebraska  statute  was  atacked  and  the 
Supreme  Court  said : 

The  Wyoming  statute,  from  which  ours  is  borrowed,  has 
been  subjected  to  judicial  construction  and  is  upheld  by  the 


WATER    RIGHT    LEGISLATION  79 

Supreme  Court  of  that  State  on  the  express  ground  that  the 
powers  authorized  therein  are  not  judicial,  but  administrative. 
*  *  *  \fy~ith  this  authoritative  construction  of  the  statute,  and  a 
decision  of  the  very  question  raised  in  the  case  at  bar  upon  rea- 
soning quite  convincing  and  satisfactory,  it  would  seem  that  the 
question  should  be  regarded  as  at  rest  The  primary  object  of 
the  board  is  for  the  purpose  of  supervising  the  appropriation,  dis- 
tribution and  diversion  of  water.  This  is  obviously  an  adminis- 
trative rather  than  a  judicial  function. 

In  Bear  Lake  v.  Budge  (75  Pac.  614)  the  Idaho 
Supreme  Court  held  invalid  that  part  of  the  1903  stat- 
ute providing  for  the  initiation  by  a  water  commis- 
sioner of  suits  to  determine  water  rights,  in  the  follow- 
ing words : 

Said  provision  also  violates  the  provision  of  our  statutes 
which  requires  suits  to  be  brought  in  the  name  of  the  real  party 
in  interest.  The  water  commissioner,  a  public  official,  is  not 
the  real  party  in  interest  in  a  suit  to  quiet  title  or  to  determine 
adverse  interest  in  property  not  claimed  by  or  belonging  to  him 
or  the  state. 

The  new  Oregon  method  is  designed  to  meet  the 
objections  of  those  who  contend  that  only  a  regular 
judicial  tributnal  should  establish  water  rights-  As 
stated  above,  the  1909  Oregon  statute  provides  for  an 
immediate  affirmance  or  modification  of  the  determina- 
tion of  the  board  by  the  circuit  court.  Regarding  this 
feature  Mr.  Lewis,  State  Engineer  of  Oregon,  in  his 
third  biennial  report  (1909-1910)  states: 

It  is  doubtful  if  the  requirement  of  a  confirmation  by  the 
court  strengthens  the  water  code.  On  the  other  hand  it  is 
argued  that  this  simply  prolongs  the  proceeding  unnecessarily 
and  that  the  determination  of  the  board,  the  members  of  which 
are  supposed  to  have  a  special  and  technical  knowledge  of  the 
conditions  involved,  should  be  final  without  the  intervention  of 
the  court,  except  upon  appeal.  It  is  also  argued  that  such  appeal 
should  only  be  allowed  to  the  Supreme  Court  thus  saving  the 
delay  occasioned  by  taking  the  matter  first  into  the  Circuit  Court 
and  then  to  the  Supreme  Court. 

Acquirement  of  Rights.  It  has  been  stated  that 
the  following  states  have  state  engineers  to  whom  ap- 
plications on  furnished  printed  forms  must  be  made 
by  intending  appropriators  :  Wyoming,  Nebraska,  Idaho, 
Utah,  Nevada,  New  Mexico,  North  Dakota,  Oklahoma, 


80  WESTERN    WATER    LAW 

South  Dakota  and  Oregon.  The  state  engineer  of  each 
of  the  above  states  will  send  an  application  blank  and 
instructions  on  request  and  every  intending  appro- 
priator  should  follow  the  directions  carefully  and  rigid- 
ly and  thus  avoid  later  trouble.  To  the  above  list 
Colorado  should  be  added  as  the  state  engineer  there 
issues  instructions  regarding  maps  and  statements  to 
be  filed  within  sixty  days  after  the  commencement  of 
surveys  or  actual  construction  of  any  ditch  or  reservoir. 

Texas  requires  the  filing  of  a  map  and  statement 
within  90  days  after  commencing  construction,  in  the 
office  of  the  county  clerk  of  the  county  where  headgate 
is  situated. 

The  remaining  western  states,  Arizona,  Califor- 
nia, Kansas,  Montana  and  Washington  still  follow 
the  crude  practice  of  posting  notices. 

At  the  close  of  the  first  chapter  of  this  book  an 
example  of  a  California  water  notice,  accepted  by  the 
Supreme  Court,  was  given  to  show  how  little  definite 
information  need  be  stated  in  the  notice  to  meet  the 
lequirement.  The  following  form  of  notice  has  been 
used  by  the  United  States  Reclamation  Service  in  the 
states  last  mentioned  and  with  slight  changes  and 
omissions  can  be  adapted  to  any  case. 

Form    of   Notice   of   Water   Appropriation. 

claims  at  the  point  where  this  notice  is 

posted,  all  the  unappropriated  waters  of  the 

River,  both  surface  and  underflow,  more  specifically  stated  as 
amounting  to cubic  feet  per  second* 

This  notice  is  posted  on  190 on  a 

tree  on  the  bank  of  the  River,  in  Sec. 

T R M.,  at  a  point  distant 

feet  and  bearing from  the corner  of  said  sec- 
tion. 

The  water  is  to  be  used  for  irrigation,  domestic,  power, 
mechanical  and  other  beneficial  uses  in  and  upon  lands  situated 
in  counties  and  located  in  the  following  town- 
ships   

The  water  hereby  appropriated  is  to  be  stored  by  means 

of  a  dam  located  in  Ses T R 

In  a  reservoir  located  in  Ts .R and  will  be 

conducted  to  the  points  of  intended  use  by  means  of  canals, 
flumes,  pipes,  tunnels,  or  other  appropriate  means  of  convey- 
ing water,  of  the  following  dimensions:  or 

such  other  dimensions  and  grade  as  will  give  capacity  of 
cubic  feet  per  second. 

*In  California  the  amount  should  be  stated  in  Inches  under 
four-inch  pressure. 

In  Arizona  the  territorial  laws  (first  state  legis- 
lature now  in  session)  require  that  a  copy  of  the 
notice  must  be  recorded  in  the  office  of  the  county 
recorder  of  the  counties  in  which  the  ditch  lies  and 


WATER    RIGHT    LEGISLATION  81 

also  in  the  office  of  the  Secretary  of  the  Territory — no 
time  limit  is  specified.  In  California  and  Kansas,  a 
copy  of  the  notice  must  be  filed  in  the  office  of  county 
recorder  (county  clerk  in  Kansas)  of  the  county 
where  posted  in  ten  days  and  work  must  begin  in  60 
days.  In  Montana  a  verified  copy  must  be  filed  in  the 
office  of  county  clerk  of  county  where  posted  in  20  days 
and  work  must  begin  in  40  days.  In  Washington  a  copy 
of  the  notice  must  be  filed  in  office  of  county  auditor  of 
county  where  posted  in  ten  days  and  work  on  stor- 
age works  must  begin  within  three  months  and  on 
diversion  works  within  six  months.  In  Montana,  in 
case  of  appropriation  from  adjudicated  streams,  the 
new  appropriator  within  40  days  after  completion 
makes  application  to  clerk  of  district  court  who  orders 
an  examination  by  a  competent  engineer.  A  hearing 
after  published  notice  is  held  and  the  court  limits  the 
appropriation  in  accordance  with  its  findings.  The 
procedure  was  adopted  in  1907.  Montana  has  had  a 
state  engineer  since  1903  but  his  duties  are  confined 
to  operations  under  the  Carey  Act.  In  view  of  the  sim- 
ple procedure  in  regard  to  the  acquirements  of  rights 
existing  in  other  states  having  state  engineers  the 
Montana  innovation  is  both  inexplicable  and  inexcus- 
able. Any  logical  procedure  should  precede  construc- 
tion and  not  follow  it. 

Aside  from  the  information  and  warning  regard- 
ing the  amount  of  unappropriated  water  an  intending 
appropriator  receives  in  the  states  requiring  applica- 
tions to  a  state  engineer,  he  is  materially  assisted  by 
definitely  knowing  the  time  limit  for  construction 
and  application  to  beneficial  use.  In  the  states  allow- 
ing the  posting  of  notices  the  statutes  merely  provide 
that  the  right  shall  relate  back  to  the  date  of  posting 
if  the  work  is  completed  with  reasonable  diligence — to 
determine  which,  in  case  of  conflict,  means  litigation. 

Instances  do  not  often  arise  where  the  state  engi- 
neer is  called  upon  to  reject  an  application  for  the  rea- 
son of  probable  detriment  to  the  public  welfare.  As 
previously  stated  this  authority  was  given  to  the  state 
engineer  by  the  1903  Utah  statute  but  was  interfered 


82  WESTERN   WATER    LAW 

with  by  the  district  court  and  was  repealed  in  1905. 
In  the  recent  Oregon  case  of  Cookinham  v.  Lewis  (114 
Pac.  88),  decided  Mar.  7,  1911,  the  provision  of  the 
Oregon  1909  statute  authorizing  the  state  engineer 
and  board  of  control  to  reject  an  application  where 
the  proposed  use  is  a  "menace  to  the  safety  and  wel- 
fare of  the  public"  was  upheld.  It  is  noteworthy  that 
Utah,  which  was  originally  characterized  by  central- 
ized authority,  should  deny  this  power  to  a  state  offi- 
cial, and  that  Oregon,  where  the  practice  is  so  new 
and  so  foreign  from  that  which  preceded,  should 
uphold  it. 

Water  rights  initiated  by  application  to  the  state 
engineer  are  based  upon  beneficial  use  and  perpetual 
unless  abandoned  or  forfeited  through  nonuse — as  was 
the  case  prior  to  the  adoption  of  the  new  legislation. 
The  only  exception  is  the  right  for  power  purposes 
which  has  been  limited  in  California  (1911)  and  Ore- 
gon (1909)  to  a  forty  year  term  and  on  which  an 
annual  tax  depending  upon  its  magnitude  is  levied. 
The  legislation  regarding  power  rights  will  be  consid- 
ered in  a  later  chapter  dealing  with  rights  of  way  over 
public  land. 

Conclusion.  It  should  be  emphasized  in  closing 
that  the  "new  legislation"  which  has  been  discussed 
is  dictated  solely  by  good  business  sense.  Instead  of 
endless  litigation  regarding  existing  rights  and  no 
system  worth  considering  regulating  new  appropria- 
tions, as  in  California,  the  new  plan  provides  a  full 
determination  of  existing  rights  in  a  single  proceed- 
ing, the  proper  distribution  of  water  by  state  officials 
according  to  such  determination,  and  a  complete  con- 
trol of  the  acquirement  of  new  rights  by  a  central  office. 
It  rests  upon  the  same  legal  basis  as  the  old  and  in 
no  way  attempts  to  interfere  with  or  limit  vested 
rights.  It  is  applicable  to  any  condition  of  topog- 
raphy or  climate,  as  is  illustrated  by  its  acceptance 
by  Nebraska  in  the  east  and  Oregon  in  the  west,  by 
North  Dakota  in  the  north  and  New  Mexico  in  the 
south.  It  leads  the  way  from  chaos  and  strife  to 
order,  harmony,  and  efficiency. 


CHAPTER  VII. 


WATER  RIGHTS  ON  INTERSTATE  STREAMS. 

The  principles  of  either  the  doctrine  of  riparian 
rights  or  of  that  of  prior  appropriation  have  been  thus 
far  considered  as  developed  within  the  various  west- 
ern states  and  no  mention  has  been  made  of  the  right 
to  use  the  waters  of  interstate  streams.  A  little  con- 
sideration only  is  necessary  to  recall  to  one  the  great 
number  of  rivers  which  either  flow  from  state  to  state 
or  form  the  boundary  line  between  them.  The  Snake 
from  its  headwaters  in  the  mountain  lakes  of  Wyoming 
meanders  across  Idaho,  crosses  and  re-crosses  the 
Idaho-Oregon  boundary  line,  flows  through  southeast- 
ern Washington  and  finally  joins  the  Columbia,  which 
is  the  boundary  between  Washington  and  Oregon. 
The  tributaries  of  the  Missouri  rise  in  Wyoming  and 
the  main  stream  flows  through  or  touches  Montana, 
North  Dakota,  South  Dakota,  Nebraska  and  Kansas. 
The  principal  tributaries  of  the  Colorado,  the  Green  and 
the  Grand,  rise  in  Wyoming  and  after  their  confluence 
in  Utah  the  main  river  flows  into  Arizona  and  becomes 
the  boundary  between  Nevada  and  Arizona,  and  also 
between  California  and  Arizona.  The  Rio  Grande 
rises  in  Colorado  and  flows  through  New  Mexico  into 
Texas. 

8S 


84  WESTERN   WATER   LAW 

The  waters  of  all  of  the  great  rivers  mentioned 
are  used  to  some  extent  in  irrigation  but  with  the 
exception  of  the  Rio  Grande,  and  possibly  the  lower 
Colorado,  there  is  no  likelihood  of  trouble  in  the 
near  future  between  states  regarding  their  use.  The 
interstate  streams  which  have  been  in  controversy 
are  the  small  mountain  tributaries  whose  small  flow 
was  early  appropriated.  On  such  streams  it  is  very 
common  to  find  ditches  heading  in  the  upper  state  and 
irrigating  lands  in  both  the  upper  and  lower  states. 
Willey  v.  Decker  (73  Pac.  210)  dealt  with  Young's 
Creek  flowing  from  Montana  into  Wyoming  and  back 
again  into  Montana,  and  the  Supreme  Court  of  Wyom- 
ing therein  held  (as  reported  in  a  head  note) : 

.  In  the  absence  of  statutory  provisions,  owners  of  land  in 
Montana  may  acquire  a  legal  right  by  prior  appropriation  to  the 
use  of  the  waters  of  a  stream  having  its  source  in  that  state, 
and  flowing  thence  *  *  *  in  Wyoming,  by  joining  with 
owners  of  land  in  Wyoming  in  the  construction  of  a  ditch,  and 
thereby  diverting  the  waters  of  the  stream  at  a  point  within 
Wyoming  for  the  irrigation  of  lands  in  Montana  and  Wyoming. 

Sage  Creek  is  another  small  stream  rising  in  Mon- 
tana and  flowing  into  Wyoming.  In  Howell  v.  John- 
son (89  Fed.  556)  the  defendants  contended  that  the 
plaintiff,  having  a  water  right  under  the  laws  of 
Wyoming,  could  not  have  a  federal  court  enforce  the 
same,  and  also  that  the  rights  to  water  were  under 
the  control  of  the  legislature  of  Montana.  The  court, 
however,  applied  the  doctrine  of  appropriation  regard- 
less of  state  lines  and  held  for  the  plaintiff — diverting 
in  the  lower  state,  Wyoming.  The  lower  prior  diversion 
was  likewise  protected  in  Hoge  v.  Eaton  (135  Fed. 
411)  wherein  appropriators  from  Sand  Creek  in  Wyom- 
ing complained  of  a  later  diversion  of  the  creek  in 
Colorado.  The  court  therein  said: 

/\    The    right   to    divert   running   waters    for   irrigating  lands 
/in  an  arid  country  is  not  controlled  or  affected  by  political  divi- 
/  sions.    It  is  the  same  in  all  states  through  which  the  streams  so 
\  diverted  may  pass. 

The  waters  of  Sage  Creek  were  again  in  contro- 
versy in  Bean  v.  Morris  which  was  decided  by  the 


WATER   RIGHTS    ON   INTERSTATE   STREAMS       85 

United  States  Supreme  Court  May  29,  1911  (221  U.  S. 
485).    The  Supreme  Court  therein  said: 

But  with  regard  to  such  rights  as  came  into  question  in 
the  older  states,  we  believe  that  it  always  was  assumed,  in  the 
absence  of  legislation  to  the  contrary,  that  the  states  were  will- 
ing to  ignore  boundaries,  and  allowed  the  same  rights  to  be  ac- 
quired from  outside  the  state  that  could  be  acquired  from  within. 
*****  There  is  even  stronger  reason  for  the  same 
assumption  here.  Montana  cannot  be  presumed  to  be  intent 
on  suicide,  and  there  are  as  many  if  not  more  cases  in  which 
it  would  lose  as  there  are  in  which  it  would  gain,  if  it  invoked 
a  trial  of  strength  with  its  neighbors.  In  this  very  instance, 
as  has  been  said,  the  Big  Horn,  after  it  has  received  the  waters 
of  Sage  Creek,  flows  back  into  that  state.  But  this  is  the  least 
consideration.  The  doctrine  of  appropriation  has  prevailed  in 
these  regions  probably  from  the  first  moment  that  they  knew 
of  any  law,  and  has  continued  since  they  became  territory  of 
the  United  States.  It  was  recognized  by  the  statutes  of  the 
United  States,  while  Montana  and  Wyoming  were  such  terri- 
tory, *  *  *  and  is  recognized  by  both  states  now.  Before 
the  state  lines  were  drawn,  of  course,  the  principle  prevailed 
between  the  lands  that  were  destined  to  be  thus  artificially 
divided.  Indeed,  Morris  had  made  his  appropriation  before 
either  state  was  admitted  to  the  Union.  The  only  reasonable 
presumption  is  that  the  states,  upon  their  incorporation,  con- 
tinued the  system  that  had  prevailed  thereofore,  and  made  no 
changes  other  than  those  necessarily  implied  or  expressed. 

The  cases  thus  far  referred  to  did  not  raise  the 
doctrine  of  riparian  rights,  although  it  is  thought  to 
still  exist  in  Montana.  The  conflict  of  doctrines  was 
before  the  Federal  Circuit  Court  in  Anderson  v. 
Bassman  (114  Fed.  14)  wherein  the  plaintiffs 
were  farmers  using  the  waters  of  the  West  Car- 
son River  in  Nevada  and  the  defendants  were 
irrigators  from  the  same  stream  in  California. 
In  the  decision  Judge  Morrow  points  out  that  the  doc- 
trine of  appropriation  is  alone  recognized  in  Nevada 
while  California  uses  the  dual  system  of  appropriation 
and  riparian  rights.  On  account  of  the  conflict  of 
accepted  systems  no  attempt  was  made  to  ascertain 
individual  rights  of  priority  but  the  case  was  decided 


86  WESTERN    WATER    LAW 

by  allowing  the  farmers  in  California  the  use  of  the 
entire  stream  for  five  days  out  of  ten  and  a  like  use 
to  those  in  Nevada. 

Kansas  v.  Colorado. 

By  far  the  most  important  case  dealing  with  the 
use  of  the  waters  of  an  interstate  stream  is  Kansas  v. 
Colorado  (206  U.  S.  91)  decided  by  the  United  States 
Supreme  Court  May  13,  1907.  It  was  initiated  on 
May  20,  1901,  by  Kansas  charging  Colorado  with  the 
wrongful  diversion  of  the  waters  of  the  Arkansas 
River.  On  May  21,  1904,  the  United  States  inter- 
vened in  behalf  of  its  operations  under  the  Reclama- 
tion Act  of  June  17,  1902. 

Kansas  claimed  that  the  waters  of  the  Arkansas 
should  be  allowed  to  flow  as  they  were  accustomed  to 
flow,  and  that  by  the  diversions  in  Colorado  not  only 
were  the  property  owners  along  the  river  deprived  of 
its  surface  flow  but  all  land  owners  within  the  drain- 
age area  were  deprived  of  the  beneficial  influence 
of  the  subterranean  flow. 

Colorado  contended  that  under  the  provisions  of 
its  constitution  it  is  the  owner  of  all  waters  within 
its  borders.  It  further  contended  that  the  Arkansas 
River  is  substantially  two  rivers — the  Colorado  Ar- 
kansas rising  in  the  Rocky  Mountains  and  sinking,  in 
times  of  low  water,  in  the  sands  of  Western  Kansas, 
and  the  Kansas  Arkansas  which  is  formed  by  springs 
and  surface  drainage  in  Western  Kansas  east  of  the 
sink  of  the  Colorado  Arkansas. 

The  United  States  in  its  petition  in  intervention 
sets  forth  the  vast  acreage  of  public  lands  to  be  re- 
claimed under  the  provisions  of  the  Reclamation  Act, 
the  reliance  of  the  arid  west  upon  the  doctrine  of  prior 
appropriation,  the  inapplicability  of  the  riparian  doc- 
trine where  irrigation  is  necessary,  the  contention 
of  Kansas  that  it  is  entitled  to  have  the  waters  of 
the  Arkansas  flow  uninterrupted  and  unimpeded  into 
Kansas,  the  contention  of  Colorado  that  it  is  the 
owner  of  all  waters  within  the  State,  and  closes 
with  the  following: 


WATER   RIGHTS    ON    INTERSTATE    STREAMS       87 

That  neither  the  contention  of  the  State  of  Colorado  nor 
the  contention  of  the  State  of  Kansas  is  correct;  nor  does  either 
contention  accord  with  the  doctrine  prevailing  in  the  arid  region 
in  respect  to  the  waters  of  natural  streams  and  of  flood  and 
other  waters.  That  either  contention,  if  sustained,  would  de- 
feat the  object,  intent,  and  purpose  of  the  reclamation  act,  pre- 
vent the  settlement  and  sale  of  the  arid  lands  belonging  to  the 
United  States,  and  especially  those  within  the  watershed  of 
the  Arkansas  River  west  of  the  ninety-ninth  degree  west  longi- 
tude, and  would  otherwise  work  great  damage  to  the  interests 
of  the  United. 

Justice  Brewer,  who  wrote  the  opinion,  after 
showing  that  the  case  is  one  over  which  the  Supreme 
Court  has  jurisdiction  said: 

Turning  now  to  the  controversy  as  here  presented,  it  is 
whether  Kansas  has  a  right  to  the  continuous  flow  of  the  waters 
of  the  Arkansas  River,  as  that  flow  existed  before  any  human 
interference  therewith,  or  Colorado  the  right  to  appropriate  the 
waters  of  that  stream  so  as  to  prevent  that  continuous  flow, 
or  that  the  amount  of  the  flow  is  subject  to  the  superior  authority 
and  supervisory  control  of  the  United  States.  *  *  *  *  *  / 
Is  the  question  one  solely  between  the  states  or  is  the  matter 
subject  to  national  legislative  regulation,  and,  if  the  latter,  to/ 
what  extent  has  that  regulation  been  carried  ?  '  *  *  *  *• 
The  primary  question  is,  of  course,  of  national  control. 

The  power  of  congress  to  preserve  the  naviga- 
bility of  streams  is  first  examined  with  the  conclusion : 

It  follows  from  this  that  if  in  the  present  case  the  national 
government  was  asserting,  as  against  either  Kansas  or  Colo- 
rado, that  the  appropriation  for  the  purposes  of  irrigation  of 
the  waters  of  the  Arkansas  was  affecting  the  navigability  of  the 
stream,  it  would  become  our  duty  to  determine  the  truth  of  the 
charge.  But  the  government  makes  no  such  contention.  On  the 
contrary,  it  distinctly  asserts  that  the  Arkansas  River  is  not 
now  and  never  was  practically  navigable  beyond  Fort  Gibson 
in  the  Indian  Territory,  and  nowhere  claims  that  any  appropri- 
ation of  the  waters  by  Kansas  or  Colorado  affects  its  navigability. 

The  court  then  proceeds  to  examine  "the  ques- 
tion whether  the  reclamation  of  arid  lands  is  one  of  the 
powers  granted  to  the  general  government,"  pays  par- 
ticular attention  to  that  part  of  section  three  of  article 
four  of  the  constitution  reading:  "The  congress  shall 


88  WESTERN    WATER   LAW 

have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to  the  United  States  *  *  *,"  and 
concludes  that  the  section  grants  to  congress  no  legis- 
lative control  over  the  states,  but  gives  it  authority 
over  federal  property  within  their  limits.  It  is  stated 
that  the  constitution  is  silent  regarding  the  reclama- 
tion of  arid  lands  as  no  such  problem  existed  at  the 
time  of  its  adoption,  that  with  the  extension  of  national 
territory  large  areas  of  arid  lands  have  been  included, 
and  that  "it  may  well  be  that  no  power  is  adequate 
for  their  reclamation  other  than  that  of  the  national 
government.  But  if  no  such  power  has  been  granted, 
none  can  be  exercised." 

It  is  the  last  sentence  quoted  which  has  led  many 
to  believe  that  the  Supreme  Court  in  this  case  de- 
clared the  Reclamation  Act  unconstitutional.  The 
validity  of  that  Act,  however,  was  not  in  issue,  but 
the  question  of  national  control — that  is,  the  superior 
right  of  congress  to  legislate  regarding  the  reclama- 
tion of  arid  lands — was.  This  should  be  clear  from 
the  following  quotation  which  is  from  the  paragraph 
immediately  following  the  sentence  referred  to: 

It  does  not  follow  from  this  that  the  national  government 
is  entirely  powerless  in  respect  to  this  matter.  These  arid  lands 
are  largely  within  the  territories,  and  over  them  by  virtue  of 
the  second  paragraph  of  section  three  of  article  four  hereto- 
fore quoted,  or  by  virtue  of  the  power  vested  in  the  national 
government  to  acquire  territory  by  treaties,  congress  has  full 
power  of  legislation,  subject  to  no  restrictions  other  than  those 
expressly  named  in  the  constitution,  and,  therefore,  it  may  legis- 
late in  respect  to  all  arid  lands  within  their  limits.  As  to  those 
lands  within  the  limits  of  the  states,  at  least  of  the  western 
states,  the  national  government  is  the  most  considerable  owner 
and  has  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  its  property.  We  do  not  mean  that  its 
legislation  can  override  state  laws  in  respect  to  the  general 
subject  of  reclamation.  While  arid  lands  are  to  be  found,  main- 
ly if  not  only  in  the  western  and  newer  states,  yet  the  powers 
of  the  national  government  within  the  limits  of  those  states 
are  the  same  (no  greater  and  no  less)  than  those  within  the 
limits  of  the  original  thirteen,  and  it  would  be  strange  if,  in 


WATER    RIGHTS    ON    INTERSTATE    STREAMS       89 

the  absence  of  a  definite  grant  of  power,  the  national  govern- 
ment could  enter  the  territory  of  the  states  along  the  Atlantic 
and  legislate  in  respect  to  improving  by  irrigation  or  otherwise 
the  lands  within  their  borders.  Nor  do  we  understand  that 
hitherto  congress  has  acted  in  disregard  to  this  limitation. 

After  quoting  from  Gutierres  v,  Albuquerque 
Land  Company  (188  U.  S.  545)  the  court  continues: 

But  it  is  usless  to  pursue  the  inquiry  further  in  this  direc- 
tion. It  is  enough  for  the  purposes  of  this  case  that  each  state 
has  full  jurisdiction  over  the  lands  within  its  borders,  including 
the  beds  of  streams  and  other  waters.  *  *  *  *  It  may 
determine  for  itself  whether  the  common  law  rule  in  respect  to 
riparian  rights  or  that  doctrine  which  obtains  in  the  arid  regions 
of  the  West  of  the  appropriation  of  waters  for  the  purposes  of 
irrigation  shall  control.  Congress  cannot  enforce  either  rule 
upon  any  state.  - 

It  is  certain  from  the  above  that  the  state  and  not 
the  nation  is  superior  regarding  legislation  concerning 
the  use  of  public  waters  not  navigable.  As  stated,  the 
Supreme  Court  believed  it  to  be  the  "primary  question" 
involved  in  the  case  and,  after  such  careful  and  direct 
consideration,  the  decision  must  be  accepted  as  final. 

Coming  to  the  direct  issue  between  the  two  states, 
it  is  held  that  the  dispute  must  be  so  adjusted  "upon 
the  basis  of  equality  of  rights  as  to  secure  as  far  as 
possible  to  Colorado  the  benefits  of  irrigation  without 
depriving  Kansas  of  the  like  beneficial  effects  of  a 
flowing  stream."  Tables  are  set  forth  in  the  opinion 
showing  the  increase  in  population,  acreage  irrigated, 
and  value  of  farm  products  in  the  counties  of  eastern 
Colorado  traversed  by  the  Arkansas  River.  The  court 
comments  on  the  marked  development  thus  evidenced 
and  says  that,  as  shown  by  the  testimony,  it  is  un- 
doubtedly due  to  irrigation.  A  like  examination  is 
made  of  the  census  statistics  for  the  counties  of  west- 
ern Kansas  with  the  conclusion  that  the  use  of  the 
water  in  Colorado  has  not  been  of  serious  detriment 
to  such  counties. 

The  substance  of  the  decision  is  well  presented 
in  the  following  paragraphs : 

Summing  up  our  conclusions,  we  are  of  the  opinion  that 
the  contention  of  Colorado  of  two  streams  cannot  be  sustained; 


90  WESTERN   WATER   LAW 

that  the  appropriation  of  the  waters  of  the  Arkansas  by-Colorado^— 
for  purposes  of  irrigation,  has  diminished  the  flow  of  water  into 
the  State  of  Kansas;  that  the  result  of  that  appropriation  has 
been  the  reclamation  of  large  areas  in  Colorado,  transforming 
thousands  of  acres  into  fertile  fields  and  rendering  possible 
their  occupation  and  cultivation  when  otherwise  they  would  have 
continued  barren  and  unoccupied ;  that  while  the  influence  of  such 
diminution  has  been  of  perceptible  injury  to  portions  of  the 
Arkansas  Valley  in  Kansas,  particularly  those  portions  closest 
to  the  Colorado  line,  yet  to  the  great  body  of  the  valley  it  has 
worked  little,  if  any,  detriment,  and  regarding  the  interests  of 
both  states  and  the  right  of  each  to  receive  benefit  through  irri- 
gation and  in  any  other  manner  from  the  waters  of  this  stream, 
"we  are  not  satisfied  that  Kansas  has  made  out  a  case  entitling 
it  to  a  decree.  At  the  same  time  it  is  obvious  that  if  the  de- 
pletion of  the  waters  of  the  river  by  Colorado  continues  to 
increase  there  will  come  a  time  when  Kansas  may  justly  say 
that  there  is  no  longer  an  equitable  division  of  benefits  and 
may  rightfully  call  for  relief  against  the  action  of  Colorado,  its 
corporations  and  citizens  in  appropriating  the  waters  of  the 
Arkansas  for  irrigation  purposes. 

The  decree  which,  therefore,  will  be  entered  will  be  one 
dismissing  the  petition  of  the  intervenor,  without  prejudice  to 
the  rights  of  the  United  States  to  take  such  action  as  it  shall 
deem  necessary  to  preserve  or  improve  the  navigability  of  the 
Arkansas  River.  The  decree  will  also  dismiss  the  bill  of  the 
State  of  Kansas  as  against  all  the  defendants,  without  preju- 
dice to  the  right  of  the  plaintiff  to  institute  new  proceedings 
whenever  it  shall  appear  that  through  a  material  increase  in  the 
depletion  of  the  waters  of  the  Arkansas  by  Colorado,  its  cor- 
porations or  citizens,  the  substantial  interests  of  Kansas  are 
being  injured  to  the  extent  of  the  destroying  the  equitable  ap- 
portionment of  benefits  between  the  two  states  resulting  from 
the  flow  of  the  river. 

It  must  be  emphasized  that  the  Supreme  Court 
in  its  decree  did  not  attempt  to  make  an  equal  division 
of  the  waters  of  the  stream,  but  rather  an  equitable 
apportionment  of  benefits.  Neither  the  rule  of  prior 
appropriation  nor  that  of  riparian  ownership  is  fol- 
lowed, but  the  case  is  allowed  to  rest  on  the  "car- 
dinal rule  of  equality  of  right" — not  to  the  means  but 
to  the  results. 


WATER    RIGHTS    ON   INTERSTATE    STREAMS       91 

Legislation  Regarding  Interstate  Streams. 

In  1911  California  enacted  legislation  making  it 
unlawful  to  transport  the  waters  of  any  lake  or  stream 
of  the  state  "into  any  other  state,  for  use  therein." 
Colorado  in  the  same  year  authorized  a  joint  legislative 
committee  to  investigate  the  interference  by  the  fed- 
eral government  or  any  state,  corporation  or  indi- 
vidual with  the  control  by  Colorado  of  the  waters 
within  its  borders.  Wyoming,  likewise  in  1911,  au- 
thorized its  attorney  general,  under  the  direction  of 
the  governor,  to  bring  such  actions  "as  he  may  deem 
expedient  to  maintain  the  rights  of  the  state  and  its 
citizens  in  the  waters  of  interstate  streams." 

The  only  state  which  provides  by  statute  for  the 
recognition  of  diversions  from    interstate    streams  is 
Oregon.     By  the  Act  of  February  23,  1911,  it  is  pro- 
vided that  no  permit  for  the  appropriation  of  water 
shall  be  denied  because  the  point  of  diversion,  or  any    p^f£ 
portion  of  the  works,  or  the  place  of  intended  use, 
or  any  lands  to  be  irrigated  may  be  situated  in  some 
other  state;  "provided,  however,  that  the    state  engi-   -n\e$ 
neer  may  in  his  discretion,  decline  to  issue  a  permit 
where  the  point  of  diversion  described  in  the  applica- 
tion is  within  the  State  of  Oregon  but  the  place  of 
beneficial  use  in  some  other  state,  unless  under  the.:j  Q>» 
laws  of  such  state  water  may  be  lawfully  diverted 
within  such  state  for  beneficial  use  in  the  State  of 
Oregon." 

Legislation  similar  to  that  of  Oregon  should  be 
enacted  by  all  the  states  where  rights  are  initiated  by 
an  application  to  the  state  engineer.  Cases  are  con- 
stantly arising  where  applications  are  made  for  pro- 
posed systems  lying  partly  within  two  states.  With- 
out definite  legislation  the  state  engineer  has  no  guide 
to  action — some  engineers  have  approved  such  appli- 
cations, others  have  rejected  them.  In  New  Mexico 
the  territorial  engineer  approved  an  application  for 
the  irrigation  of  lands  in  New  Mexico  by  a  ditch  head- 
ing in  the  Animas  River  in  Colorado  about  six  miles 
above  the  interstate  line.  The  matter  reached  the 
courts  and  the  Supreme  Court  of  New  Mexico  de- 


92  WESTERN    WATER    LAW 

cided  that  "the  territorial  engineer  was  without  au- 
thority to  approve  the  application  in  question."  (Tur- 
ley  v.  Furman,  114  Pac.  278,  decided  March  4,  1911). 

Not  only  is  legislation  necessary  in  regard  to  the 
initiation  of  rights  for  interstate  ditches  in  order  to 
protect  the  one  so  appropriating  water,  but  it  is  badly 
needed  in  the  interest  of  the  general  public  in  divid- 
ing the  public  waters  among  ditches  entitled  thereto. 
At  present  the  only  means  provided  by  statute  for 
distributing  the  waters  of  streams  is  the  authority 
given  the  water  commissioners,  or  water  masters,  to 
close,  or  partly  close,  headgates  so  that  the  later  and 
upper  ditches  cannot  take  the  waters  belonging  to 
prior  appropriators.  As  such  officers  cannot  act  be- 
yond the  borders  of  their  state  they  are  powerless  to 
control  a  ditch  heading  above  their  state  line.  The 
state  engineer  of  Nebraska  reports  that  one  ditch 
diverting  water  from  the  North  Platte  in  Nebraska 
near  the  state  line  was  extended  so  that  it  headed 
in  Wyoming  about  two  hundred  feet  above  the  state 
line.  It  thereupon  proceeded  to  take  all  the  water 
desired  while  the  ditches  heading  below  in  Nebraska 
and  having  earlier  rights  had  their  supply  regulated, 
and  in  some  cases  entirely  cut  off,  by  the  state  officials 
in  charge. 

To  remedy  this  condition  the  state  engineer  of 
Nebraska  has  recommended  "that  every  canal  flowing 
into  this  state  have  a  controlling  gate  and  measuring 
flume  just  within  the  state  and  in  addition  thereto 
a  return  canal  whereby  the  water  sought  to  be  appro- 
priated may  flow  back  to  the  stream  from  which 
diverted."  Other  state  engineers  have  made  similar 
suggestions.  In  many  cases  the  construction  of  a 
"return  canal"  would  necessitate  heavy  expenditures 
and  appear  prohibitive,  but  the  situation  on  many 
streams  is  sufficiently  serious  to  warrant  drastic  ac- 
tion. 

The  1911  California  legislation  referred  to  above 
is  copied  from  a  statute  adopted  in  New  Jersey  in 
1905.  The  constitutionality  of  the  latter  was  upheld 


WATER    RIGHTS    ON    INTERSTATE    STREAMS       93 

by  the  United  States  Supreme  Court  in  Hudson  Water 
Company  v.  McCarter  (209  U.  S.  349).  It  is  spe- 
cifically stated  in  the  opinion  therein,  however,  that 
"The  problems  of  irrigation  have  no  place  here  *  *  *," 
so  the  decision  will  not  necessarily  control  in  attacks 
upon  the  validity  of  such  statutes  in  the  western  states. 
In  further  support  of  their  validity  it  is  important  to 
note  that  most  of  the  earlier  decisions  regarding  rights 
on  interstate  streams  lay  down  the  rule  of  prior  appro- 
priation regardless  of  state  lines  in  the  absence  of 
statutory  provisions  to  the  contrary.  The  argument 
against  such  prohibitive  legislation  must  be  based  on 
reasons  of  policy  rather  than  those  of  law.  As  sug- 
gested in  the  quotation  from  Bean  v.  Morris  above, 
each  state  stands  to  lose  just  as  much  as  it  can  gain 
by  such  statutes. 

•  Summary. — From  a  consideration  of  the  cases 
dealing  with  interstate  streams  (the  leading  ones  only 
being  mentioned  above)  the  following  conclusions  are 
justified.  The  state  and  not  the  nation  is  superior  re- 
garding legislation  concerning  the  use  of  public  waters, 
excepting  only  the  matter  of  navigation  wherein  the 
nation  controls.  Between  private  appropriators  in  two  *\ 
states  recognizing  only  the  doctrine  of  prior  appro- 
priation it  is  very  probable  that  that  doctrine  will  be 
applied  regardless  of  state  lines.  Between  private 
appropriators  in  two  states,  one  or  both  of  which  re- 
cognize the  doctrine  of  riparian  rights,  the  priority 
of  appropriations  will  not  be  established,  but  the  waters 
will  be  distributed  on  an  attempted  equitable  basis  sug- 
gested by  the  particular  facts  of  the  case.  In  a  con-  \ 
troversy  between  two  states  in  their  soverign  capaci- 
ties the  principle  established  in  Kansas  v.  Colorado 
Avill  undoubtedly  be  applied,  and  the  Supreme  Court 
will  decide  in  accordance  with  what  the  facts  of  the 
case  indicate  to  be  an  equitable  apportionment  of  bene-  ' 
fits.  Legislation  forbidding  the  diversion  of  waters 
from  within  a  state  to  another  state  is  probably  legally 
sound  but  is  based  upon  such  shortsighted  policy  that 
It  cannot  prevail. 


CHAPTER  VIII. 

RIGHTS  OF  WAY  OVER  PUBLIC  LANDS  FOR 
DITCHES  AND  RESERVOIRS. 

As  already  stated  in  the  first  chapter,  the  first 
congressional  legislation  regarding  rights  of  way 
over  the  public  domain  was  the  Act  of  1866,  now  Sec- 
tion 2339  of  the  Revised  Statutes  of  the  United  States. 
It  acknowledges  and  confirms  rights  of  way  for  ditches 
used  in  connection  with  "vested  and  accrued"  water 
rights  for  "mining,  agricultural,  manufacturing,  or  other 
purposes."  It  is  still  in  force  for  all  unreserved  pub- 
lic lands  for  purposes  other  than  the  generation  of 
power. 

By  virtue  of  the  provisions  of  the  Act  of  1866,  one 
may  go  upon  the  public  domain,  dig  his  ditch,  divert 
and  apply  water  to  beneficial  use,  and  thus  secure 
right  of  way  over  the  land  occupied.  As  the  act 
recognizes  only  rights  of  way  for  ditches  used  in  con- 
nection with  vested  water  rights,  it  would  seem  that 
no  right  of  way  would  attach  until  the  completion 
of  the  works  so  that  the  water  could  be  diverted.  The 
California  Court  of  Appeals  has  held  otherwise,  how- 
ever, in  de  Wolfskill  v.  Smith  (89  Pac.  1001.)  The 
plaintiff  had  posted  notices  of  water  appropriation 
at  abandoned  oil  wells,  on  unoccupied  public  land, 
from  which  water  was  flowing.  She  proceeded  with 
her  ditch  construction  with  due  diligence  until 
enjoined  by  the  defendant  Smith  who  had  made  home- 
stead entry  on  the  land  soon  after  the  notices  were 

94 


RIGHTS    OF   WAY  95 

posted.  Although  the  court  points  out  that  the  post- 
ing of  a  notice  "does  not  constitute  an  appropriation" 
and  that  the  "right  to  water  depends  upon  *  *  * 
making  an  actual  appropriation  of  its  use,"  it  holds: 
By  posting  the  notice  appellant  (plaintiff)  from  that 
time  became  vested  with  the  right  to  the  use  of  the  stream 
of  water  then  flowing  from  these  wells,  together  with  the 
right  to  construct  over  and  across  the  land  the  necessary 
ditches  to  divert  and  conduct  the  same  to  the  place  of 
intended  use. 

It  is  certain  that  as  against  the  government  the 
water  right  is  not  considered  vested  until  the  diversion 
works  are  completed  and  ready  for  use.  Under  the 
provisions  of  the  Reclamation  Act  the  public  lands 
within  a  reservoir  site,  known  as  Alkali  Lake,  in  An- 
telope Valley,  California,  were  withdrawn  from  entry. 
The  Rickey  Land  and  Cattle  Company  owned  all 
the  private  land  within  the  site  and  also  irrigation 
ditches  running  from  the  West  Walker  River  to  the 
site,  which  it  intended  to  use  for  storage  purposes.  It 
applied  for  right  of  way  over  the  public  land  within 
the  reservoir  site  under  the  Act  of  1891,  and,  after 
the  rejection  of  its  application  by  the  Secretary  of 
the  Interior,  it  proceeded  with  the  construction  of 
a  tunnel  outlet,  claiming  that  its  rights  were  vested 
under  the  $.ct  of  1866.  The  government,  in  the  in- 
terest of  the  Reclamation  Service,  thereupon  insti- 
tuted suit  and  the  company  was  enjoined  from  pros- 
ecuting the  construction  work.  (U.  S.  v.  Rickey  Land 
&  Cattle  Company,  164  Fed.  496.)  In  this  case  it 
was  impossible  to  use  the  reservoir  before  the  com- 
pletion of  an  outlet  tunnel  and  channel  for  the  return 
of  the  stored  waters  to  the  West  Walker  River.  After 
quoting  Sections  2339  and  2340  of  the  Revised  Statutes 
the  court  says : 

It  is  very  clear  that  no  one  can  under  these  sections 
acquire  as  against  the  government,  a  vested  easement  in  and 
to  public  lands,  for  a  reservoir  site,  until  the  actual  com- 
pletion of  the  reservoir,  so  that  the  waters  to  be  impounded 
therein  may  be  applied  to  the  beneficial  uses,  contemplated 
by  the  irrigation  system  of  which  it  forms  a  part. 


96  WESTERN   WATER    LAW 

This  was  the  construction  placed  upon  these  sections  by 
the  Supreme  Court,  in  Bear  Lake  Irrigation  Company  vs. 
Garland,  164  U.  S.,  pages  1,  18  and  19,  in  which  case  it  was 
said: 

It  is  the  doing  of  the  work,  the  completion  of  the  well, 
or  the  digging  of  the  ditch,  within  a  reasonable  time  from 
the  taking  of  possession,  that  gives  the  right  to  use  the 
water  in  the  well  or  the  right  of  way  for  the  ditches  or 
the  canal  upon  or  through  the  public  land.  JJntil  the  com- 
pletion of  this  work,  or,  in  other  words,  until  the  perform- 
ance of  the  condition  upon  which  the  right  to  forever  main- 
tain posession  is  based,  the  person  taking  possession  has  no 
title,  legal  or  equitable,  as  against  the  government. 

Regardless,  therefore,  of  the  doubtful  logic  of 
the  de  Wolfskill  case,  no  one  planning  any  material 
diversion  work  should  rest  upon  the  Act  of  1866,  but 
should  secure  his  right  of  way  or  permission  to  occupy 
public  lands  before  initiating  actual  work. 

Act  of  March  3,  1891:  The  Act  of  March  3,  1891, 
grants  rights  of  way  over  public  lands  and  reservations 
for  irrigation  ditches  and  reservoirs  upon  the  approval 
of  applications  by  the  Secretary  of  the  Interior.  Such 
applications  must  be  filed  with  the  register  of  the  land 
district  in  which  the  ditch  or  reservoir  is  to  be  located. 
The  required  contents  of  papers  and  maps  forming 
the  application  are  specified  in  detail  in  the  regula- 
tions of  the  General  Land  Office,  and  the  applicant 
must  follow  the  directions  to  the  letter.  (Copies  of 
the  regulations  will  be  sent  on  request  to  the  General 
Land  Office,  Washington,  D.  C.)  The  right  of  way 
granted  extends,  where  necessary  for  construction 
on  maintainance,  "fifty  feet  on  each  side  of  the  mar- 
ginal limits"  of  the  ditch  or  reservoir,  and  the  term 
"marginal  limits"  has  been  construed  to  mean  the 
high  water  line.  The  right  is  also  given  to  take  from 
the  adjacent  public  land  material,  earth  and  stone 
necessary  for  the  construction  work,  but  it  has  been 
held  that  this  right  is  for  construction  work  only  and 
not  for  repairs  or  improvements. 

The  act  specifically  provides  that  "the  privilege 
herein  granted  shall  not  be  construed  to  interfere 


RIGHTS    OF   WAY  97 

with  the  control  of  water  for  irrigation  and  other 
purposes  under  authority  of  the  respective  states  and 
territories."  The  land  office  accordingly  does  not 
attempt  to  regulate  appropriations  of  public  waters 
but  simply  insists  upon  a  showing  by  the  applicant 
that  the  state  or  territorial  laws  governing  water 
rights  have  been  complied  with. 

The  act  further  provides  that  if  any  part  of  the 
ditch  shall  not  be  completed  within  five  years  after 
its  location  the  right  of  way  for  such  part  shall  be 
forfeited.  Regarding  such  forfeitures,  the  Secretary 
of  the  Interior  has  held  that  the  jurisdiction  of  the 
Interior  Department  is  lost  upon  the  approval  of  an 
application,  and  any  action  looking  to  the  cancella- 
tion or  annulment  of  the  right  of  way  must  be  brought 
in  the  courts.  The  regulations  call  for  the  filing  of 
affidavits  on  the  completion  of  the  ditch  or  reservoir. 
If  the  line  of  the  right  of  way  as  granted  has  been 
departed  from,  new  maps  and  field  notes  must  be 
filed  and  the  right  to  the  original  but  unused  line  re- 
linquished. 

The  act  also  provides  "that  no  such  right  of  way 
shall  be  so  located,  as  to  interfere  with  the  proper 
occupation  by  the  government  of  any  such  reservation, 
and  all  maps  of  location  shall  be  subject  to  the  ap- 
proval of  the  department  of  the  government  having 
jurisdiction  of  such  reservation."  Under  this  pro- 
vision the  Forest  Service  has  prepared  special  regu- 
lations governing  rights  of  way  through  the  national 
forests.  No  construction  work  in  a  national  forest 
will  be  allowed  on  such  rights  of  way  until  the  appli- 
cation has  been  approved  by  the  Secretary  of  the  In- 
terior, or  unless  permission  for  such  work  has  been 
specifically  given,  and  as  a  condition  precedent  to 
such  approval  the  applicant  must  enter  into  such 
stipulation  and  execute  such  bond  as  the  Forest  Serv- 
ice may  require.  For  ditches  and  reservoirs  occupy- 
ing part  of  government  reservations  other  than 
national  forests,  no  application  for  right  of  way  will 
be  approved  by  the  Secretary  of  the  Interior  until 


98  WESTERN   WATER    LAW 

it  has  been  approved  by  the  department  in  charge.  If 
the  right  of  way  is  upon  unsurveyed  lands,  the  map 
must  be  filed  within  twelve  months  after  the  official 
survey  thereof,  and  no  application  for  such  right  of 
way  can  be  approved  prior  to  the  official  survey. 

The  following  paragraph  from  the  regulations 
clearly  states  the  nature  of  the  grant  of  right  of  way 
under  the  act  of  1891 : 

The  right  granted  is  not  in  the  nature  of  a  grant  of 
lands,  but  is  a  base  or  qualified  fee.  The  possession  and 
right  of  use  of  the  lands  are  given  for  the  purposes  contem- 
plated by  law,  but  a  reversionary  interest  remains  in  the 
United  States,  to  be  conveyed  by  it  to  the  person  to  whom 
the  land  may  be  patented  whose  rights  will  be  subject 
to  those  of  the  grantee  of  the  right  of  way.  All  persons 
settling  on  a  tract  of  public  land,  to  part  of  which  right  of 
way  has  attached  for  a  canal,  ditch,  or  reservoir,  take  the" 
land  subject  to  such  right  of  way,  and  at  the  total  area 
of  the  subdivision  entered,  there  being  no  authority  to  make 
deduction  in  such  cases.  If  a  settler  has  a  valid  claim  to 
land  existing  at  the  date  of  the  filing  of  the  map  of  definite 
location,  his  right  is  superior,  and  he  is  entitled  to  such 
a  reasonable  measure  of  damages  for  right  of  way  as  may 
be  determined  upon  by  agreement  or  in  the  courts,  the 
question  being  one  that  does  not  fall  within  the  jurisdiction 
of  this  department.  Section  21  of  the  act  of  March  3,  1891, 
provides  that  the  grant  of  a  right  of  way  for  a  canal,  ditch, 
or  reservoir  does  not  necessarily  carry  with  it  a  right  to  the 
use  of  land  50  feet  on  each  side,  but  only  such  land  may  be 
ur,ed  as  is  necessary  for  construction,  maintenance,  and 
care  of  the  canal,  ditch,  or  reservoir.  The  width  is  not 
specified. 

Act  of  May  11,,  1898:  The  Act  of  May  11,  1898, 
authorizes  the  use  of  rights  of  way  granted  under  the 
Act  of  1891  for  purposes  subsidiary  to  the  main  pur- 
pose of  irrigation,  as  is  shown  by  the  following  clause 
from  section  two  of  the  act: 

/*       And    said    rights    of    way    may    be    used    for    purposes 
,'    of  water  transportation,   for  domestic   purposes,   or   for  the 
development   of  power,   as   subsidiary   to   the   main   purpose 
\of  irrigation. 

In  all  cases  the  applicant  must  prove  to  the  satis- 
faction of  the  Interior  Department  that  the  intended 


RIGHTS    OF   WAY  99 

use,  other  than  irrigation,  is  really  subsidiary  thereto, 
and  the  proof  must  be  especially  clear  where  the  de- 
velopment of  power  is  contemplated. 

Act  of  February  1,  1905 :  jection  four  of  the  Act 
of  February  1,  1905,  authorizesltne  Secretary  of  the  In- 
terior to  grant  rights  of  way  through  national  forests 
to  citizens  and  corporations  of  the  United  States  "for] 
municipal  or  mining  purposes,  and  for  the  purposes  of 
milling  and  reduction  of  ores."  The  nature  of  the 
grant  is  the  same  as  that  under  the  Act  of  March  3, 
1891,  except  that  no  right  is  given  to  take  any  ma- 
terial, earth,  or  stone  for  construction  or  other  pur- 
poses, and  that  the  right  of  way  is  restricted  to  the 
strip  necessary  for  the  construction  and  maintenance 
of  the  works.  Applications  are  made  in  the  same 
way  as  those  under  the  Act  of  1891. 

Act  of  February  15,  1901:  Although  other  uses 
are  specified  in  this  act,  it  is  now  of  importance  only 
in  regard  to  rights  of  way  though  the  public  lands 
and  reservations  for  reservoirs  and  canals  for  the  gen- 
eration of  electric  power,  and  for  electric  transmission, 
telephone  and  telegraph  lines.  It  is  provided  in  the 
act  that  any  permission  given  thereunder  may  be 
revoked  by  the  Secretary  of  the  Interior  in  his  dis- 
cretion. The  right  granted  is  a  mere  license,  revocable 
at  any  time,  and  does  not  carry  with  it  permission  to 
take  material,  earth,  or  stone  from  the  public  lands 
or  reservations  for  construction  or  other  purposes. 

For  permission  to  occupy  land  outside  of  the  na- 
tional forests  applications  must  be  made  in  the  same 
way  in  general  as  under  the  Act  of  1891.  Where  the 
entire  right  of  way  lies  within  an  Indian  Reservation 
the  application  must  be  filed  with  the  Commissioner  of 
Indian  Affairs. 

Rights  of  Way  for  Power  Purposes  Through  National 
Forests. 

The  Act  of  February  1,  1905,  transferred  the  ad- 
ministrative control  of  the  national  forests  from  the 
Interior  Department  to  the  Department  of  Agricul- 
ture, so  that  the  revocable  license  for  electrical  plants 


100  WESTERN   WATER   LAW 

(ditches,  reservoirs,  transmission  lines,  etc.)  is  now 
given  under  the  authority  of  the  Secretary  of  Agricul- 
ture. The  Use  Book — Water  Power — of  the_JLor.est 
Service  sets  forth  in  detail  the.  regulation  and  in- 
structions regarding  such  licenses  or  "permits."  The 
first,  second,  fifth  and  sixth  paragraphs  of  the  1911 
regulations  are  as  follows : 

REG.  L-l.  Preliminary  water  power  permits  will  allow 
the  occupancy  of  the  lands  of  the  United  States  within 
national  forests  for  the  purpose  of  securing  the  data  re- 
quired for  an  application  for  final  permit  and  for  such  con- 
struction as  may  be  necessary  to  preserve  water  appropria- 
tion during  that  period.  Final  water  power  permits  will 
allow  the  occupancy  and  use  of  such  lands  for  the  construc- 
tion, maintenance  and  operation  thereon  of  works  for  the 
main  purpose  of  the  generation  of  electrical  power.  Prelimi- 
nary or  final  permits  for  commercial  water  power  works,  or 
for  non-commercial  water  power  works  of  a  capacity  in  ex- 
cess of  one  thousand  (1000)  horsepower,  will  be  granted, 
extended,  and  renewed  only  by  the  Secretary  of  Agriculture. 
Permits  for  non-commercial  water  power  works  of  a  capacity 
of  one  thousand  (1000)  horsepower  or  less,  and  for  trans- 
mission lines,  not  a  part  of  any  water  power  works  covered 
by  a  water  power  permit  will  be  granted,  extended  and  re- 
newed by  the  District  Forester.  The  Secretary  of  Agricul- 
ture alone  may  revoke  water  power  permits. 

REG.  L-2.  The  "non-commercial  water  power  works" 
will  be  applied  to  water  power  works  owned  and  used  solely 
b>  the  permittees  for  one  or  more  of  the  following  purposes: 
In  the  operation  of  their  own  mines,  or  in  the  milling  and 
reduction  of  ores  therefrom;  as  auxiliary  to  irrigation  works 
owned  and  operated  by  permittees;  temporarily,  in  the 
construction  of  other  works  for  which  permission  has  already 
been  granted  the  permittees;  by  municipalities  for  municipal 
purposes;  or  for  such  other  miscellaneous  uses  not  herein 
enumerated  as  may  be  determined  by  the  Secretary  of  Agri- 
culture to  fall  within  this  class.  No  charge  will  be  made  for 
the  use  and  occupancy  of  lands  for  non-commercial  water 
power  works.  All  other  water  works  will  be  termed  "com- 
mercial." 

"  *  *  *  REG.  L-5.  Occupancy  and  use  of  national 
forest  lands  is  the  sole  privilege  granted  under  a  water  power 
permit.  In  the  issuance  of  such  permits  no  attempt  will  be 


RIGHTS    OF    WAY  101 

made  tc  adjudicate  water  rights,  since  water  rights  are 
acquired  under  state  laws  and  adjudicated  by  the  courts. 
Therefore  no  protests  against  the  granting  of  an  applica- 
tion, if  based  upon  alleged  lack  of  water  rights,  will  be  con- 
sidered; nor,  in  general,  will  any  allegation  that  the  time 
of  beginning  or  completion  of  construction  has  been  or  is 
delayed  by  litigation  over  water  rights  be  accepted  as  a 
sufficient  reason  for  granting  any  extensions  of  time. 

REG.  L-6.  Unless  sooner  revoked  by  the  Secretary  of 
Agriculture,  a  final  water  power  permit  shall  terminate  at 
the  expiration  of  fifty  years  (50)  years  from  the  date  of  the 
permit,  and  may  then  be  deemed  to  be  an  application  by  the 
permittee  for  a  new  permit  to  occupy  and  use  such  lands 
as  are  occupied  and  used  under  the  original  permit:  Pro- 
vided, That  the  permittee  shall,  not  less  than  nor  more  than 
four  years  prior  to  the  termination  of  the  permit  formally 
notify  the  Secretary  of  Agriculture  that  it  desires  such  new 
permit,  and  will  comply  with  all  laws  and  regulations  at 
such  time  existing,  regulating  the  occupancy  and  use  for 
water  power  purposes  of  lands  of  the  United  States  within 
the  national  forests. 

Applications  must  be  filed  with  the  District  For- 
ester of  the  district  in  which  the  lands  to  be  occupied 
are  situated.  In  approving  an  application  the  time 
for  beginning  and  completing  construction  is  speci- 
fied. Before  a  final  permit  for  commercial  water  power 
works  can  be  secured,  the  applicant  must  execute  a 
stipulation  providing  among  other  things  for  the  pay- 
ment annually  in  advance  of  such  charges  as  may 
be  required  by  the  Secretary  of  Agriculture,  for  the 
installation  and  maintenance  of  approved  hydraulic 
measuring  devices,  and  for  the  inspection  of  books 
and  records  showing  stream  flow  and  reservoir  data 
and  amount  of  electric  energy  generated. 
Special  State  Legislation  Regarding  Water  Rights  for 
Power  Purposes. 

As  previously  stated,  water  rights  for  all  pur- 
poses are  generally  considered  to  exist  as  long  as  the 
use  continues,  but  water  rights  for  power  purposes  have 
been  limited  to  fixed  periods  in  California  and  Oregon. 
The  latter  State  in  1909  fixed  the  period  at  forty  years 
with  a  preference  right  of  renewal,  for  a  period  then 


102  WESTERN   WATER    LAW 

fixed  by  law,  and  California,  at  the  regular  legislative 
session  of  1911,  fixed  the  period  at  twenty-five  years, 
but  changed  it  to  forty  years  at  the  special  session 
of  the  same  year.  Each  State  by  its  new  legislation 
levies  an  annual  charge  for  power  development  de- 
pending upon  its  magnitude. 

This  special  water  power  legislation  was  undoubt- 
edly suggested  by  the  regulations  of  the  Forest  Serv- 
ice. It  is  an  attempt  to  regulate  the  so-called  "power 
monopoly" — the  underlying  idea  being  that  no  per- 
manent rights  should  be  given  and  that  the  power 
company  should  in  a  small  measure  share  its  earnings 
with  the  State.  Regarding  the  Oregon  legislation 
State  Engineer  Lewis  in  his  Third  Biennial  Report, 
(1909-1910,  pages  82,  83)  says : 

The  annual  tax  idea  seems  to  be  based  upon  the  fact 
that  water  is  the  property  of  the  public,  and  those  who  enjoy 
a  right  to  its  use  should  pay  something  to  the  state  for 
the  privilege.  It  was  not  recommended  or  approved  by 
the  Oregon  Conservation  Commission.  Whether  the  basis 
for  electric  power  charges  will  be  to  "charge  all  the  traffic 
will  bear"  as  in  railway  rates,  is  a  matter  of  uncertainty. 
The  price  of  electric  power  is  being  constantly  lowered 
through  competition  with  steam  producer  gas,  etc.,  where 
the  cost  of  production  has  been  greatly  reduced  in  recent 
years  through  improvements  in  methods  and  machinery. 
Only  these  water  powers  will  be  developed  where  the  cost 
of  production  will  permit  successful  competition  with  these 
other  power  producing  agencies.  If,  in  addition  to  the 
necessary  development  cost  a  heavy  annual  charge  per 
horsepower  must  be  paid  the  state,  it  is  conceivable  that 
such  charge  may  defeat  rather  than  promote  the  conserva- 
tion idea,  as  well  as  retard  development.  We  will  be  con- 
suming our  limited  supply  oi!  coai,  for  economic  reasons, 
while  cur  water  power  remains  undeveloped  and  goes  to 
waste  year  after  year. 

Comments  on  Water  Power  Legislation. 

A  little  reflection  should  suggest  that  the  present 
special  legislation  regarding  water  power  falls  far 
short  of  the  desired  goal — the  protection  of  the  public-. 
When  the  right  of  way  act  of  February  15,  1901,  was 


RIGHTS    OF   WAY  103 

passed,  little  was  known  of  practical  rate  fixing  and 
the  revocable  license  appealed  to  many  as  a  needed 
curb.  Later  the  annual  charge  was  fixed  by  depart- 
mental regulation.  The  legislation  and  regulations  are 
especially  designed  for  the  "commercial"  power  com- 
panies— that  is,  those  engaged  in  public  service.  The 
right  of  the  state  to  regulate  public  utilties  and  fix 
the  rates  of  public  service  companies  is  now  undis- 
puted. For  years  the  rates  of  water  companies  have 
been  fixed  throughout  the  entire  country,  later  the 
railroads  were  taken  in  hand,  and  now  public  service 
commissions  in  a  great  number  of  states  have  been  em- 
powered to  fix  the  rates  of  every  public  service  com- 
pany. The  movement  is  so  wide-spread  and  has  been 
so  generally  accepted  without  litigation  by  the  com- 
panies involved  that  its  adoption  by  every  state  in  the 
near  future  is  certain. 

JBeing  assured  that  the  state  can  and  will  insist 
upon  rates  which  are  reasonable,  all_  that  remains  is 
to  prevent  the  state  or  nation  from  giving  to  a  public 
service  company  a  property  right  which  may  be  cap- 
italized. Thus  far  no  such  preventive  action  has  been 
taken.  Although  the  permit  to  occupy  the  public 
lands  is  revocable  and  the  water  right  in  California 
and  Oregon  is  but  for  a  fixed  period,  they  are  rights 
which  are  bought  and  sold  and  on  which  the  company 
expects  the  consumer  to  pay  a  good  return.  Likewise 
the  annual  charge  made  by  state  and  nation  must  be 
paid  by  the  consumer — even  where  rates  are  fixed  by 
a  commission,  as  it  is  a  legitimate  operating  charge. 

It  is  now  generally  conceded  that  the  fixed  period 
idea  is  wrong  economically.  Although  a  preference 
right  to  continue  after  the  end  of  the  period  is  prom- 
ised the  permittee,  it  is  subject  to  future  legislation, 
the  nature  of  which  can  not  be  prophesied.  The  re- 
sult is  that  the  operating  company  must  charge  a 
comparatively  high  rate  in  order  to  return  the  capital 
invested  within  the  fixed  period,  and  the  chance  of 
poor  maintenance  near  the  end  of  the  period  is  decided. 

Many  state  and  federal  officials  are  now  ready 


104  WESTERN    WATER   LAW 

to  recommend  an  indeterminate  license  in  place  of  the 
fixed  term  or  revocable  license.  The  indeterminate 
license  is  to  be  granted  subject  to  the  condition  that 
the  works  may  be  taken  over  at  any  time  by  the 
state,  or  other  public  unit,  at  a  valuation  to  be  fixed 
by  the  state  public  service  commission.  As  such  tak- 
ing is  very  unlikely  in  any  given  case  and  as  it  will 
become  more  and  more  so  as  the  public  service  com- 
mission become  older  and  stronger,  the  indetermi- 
nate license  has  almost  the  assurance  of  a  perpetual 
right,  conditioned  only  on  proper  operation.  If  such 
license  is  granted  on  the  further  condition  that  no 
rights  of  way,  franchises  or  water  rights  secured  from 
the  state  or  nation  can  be  capitalized  for  either  rate 
fixing  purposes  or  in  cases  of  taking  as  above,  the 
public  is  certainly  protected  in  full  measure. 

State  Versus  Nation. 

During  the  past  few  years  withdrawals  from 
entry  of  public  lands  for  power  sites  have  been  made 
in  large  numbers.  The  Land  Classification  Board  of 
the  United  States  Geological  Survey  has  charge  of  the 
examination  of  such  withdrawn  lands,  and  all  future 
applications  for  rights  of  way  for  power  purposes 
over  public  lands  outside  of  national  forests  will  be 
passed  upon  by  the  engineers  of  the  board. 

Comparatively  recently  a  movemtent  has  been 
gaining  weight  to  have  the  nation  transfer  the  "power 
site  withdrawals"  in  trust  to  the  states.  To  many, 
of  whom  the  writer  is  one,  this  suggestion  is  a  step 
backward.  In  the  last  chapter  attention  was  called 
to  the  doubtful  water  rights  of  interstate  ditches.  If 
the  suggested  step  be  taken  the  right  of  way  of  such 
ditches  would  be  equally  doubtful  and  the  same  ques- 
tion would  be  raised  regarding  interstate  transmission 
lines. 

In  all  phases  of  legislation  the  struggle  should 
be  for  uniformity.  There  are  but  two  federal  depart- 
ments concerned  in  the  regulations  regarding  rights 
of  way  and  the  minor  differences  in  their  points  of 


RIGHTS    OF   WAY  105 

view  are  being  rapidly  eliminated.  It  would  take 
many  years  to  bring  the  many  western  states  into 
such  unison.  Conceding  for  the  purposes  of  argument 
only  that  the  technical  men  of  the  federal  bureaus  are 
not  better  trained  than  those  in  the  state  offices,  the 
longer  period  of  service  and  greater  freedom  from 
politics  are  sufficient  to  make  the  federal  bureau  the 
more  effective.  It  must  be  remembered  also  that  in 
each  of  the  western  states  land  matters  and  water 
matters  are  handled  by  different  offices  having  little 
or  nothing  in  common.  The  embarrassment  would  be 
thus  increased. 

A  real  difficulty  in  the  way  of  an  early  settlement 
of  the  whole  question  is  that  the  present  is  a  transition 
period.  The  public  service  commissions  with  their 
full  control  of  all  public  service  companies  are  so  new 
that  their  existence  is  either  not  recognized  or  their 
worth  is  questioned.  When  they  have  demonstrated 
their  efficiency  there  will  be  no  further  excuse  for 
either  federal  bureaus  or  state  water  commissions  at- 
tempting to  regulate  the  power  business.  It  has  been 
shown  that  the  state  and  not  the  nation  has  control  of 
water  rights.  There  is  no  more  reason,  therefore,  for 
the  nation  charging  an  annual  tax  depending  upon 
the  amount  of  power  developed — which,  of  course,  is 
a  function  of  the  water  right — than  there  is  for  de- 
manding of  a  railroad  company,  as  a  condition  pre- 
cedent to  grant  of  right  of  way,  that  it  must  pay  an 
annual  charge  depending  upon  the  traffic  handled.  The 
nation  as  owner  of  the  land  should  give  a  right  of  way 
or  indeterminate  license  conditioned  upon  construction 
within  a  specified  time  and  leave  the  question  of  regu- 
lation to  the  state  public  service  commissions. 

To  repeat,  the  future  congressional  and  state  legis- 
lation regarding  water  power  development  will  de- 
pend upon  the  state  public  service  commissions.  If 
they  prove  efficient,  as  there  is  every  reason  to  believe, 
the  public  should  insist  that  all  other  agencies  stay 
within  their  proper  spheres  and  stop  tampering  with 
the  regulation  of  public  utilities. 


CHAPTER  IX. 
COMMERCIAL  IRRIGATION  ENTERPRISES. 

A  study  of  the  historical  development  of  irrigation 
in  the  western  states  shows  that  the  small  mountain 
streams  along  the  overland  trails  and  at  or  near  the 
trading  posts  were  the  first  to  be  used  for  agricultural 
purposes.  As  mines  were  discovered  and  operated  the 
waters  of  the  streams  in  the  larger  valleys  were 
diverted  by  simple  ditches  on  the  lower  or  bottom 
lands.  Later  two  or  more  settlers  joined  in  the  con- 
struction of  larger  ditches  for  jthe  irrigation  of  land 
higher  up  on  the  stream,  and  in  this  way  all  easily 
accessible  lands  in  the  valley  were  irrigated.  These  in- 
dividual and  partnership  ditches  were  sufficient  for 
the  lower  lands. 

It  soon  became  known  that  the  higher,  or  mesa 
lands,  were  better  than  the  bottom  lands,  but  the  prob- 
lem of  digging  ditches  to  them  offered  too  many  diffi- 
culties for  local  accomplishment.  It  was  at  this  point 
that  eastern  and  foreign  capital  was  secured  for  the 
construction  of  irrigation  canals  to  reach  the  higher 
lands.  The  size  and  number  of  such  systems  built 
during  the  eighties  indicate  that  the  promoter  had 
an  easy  task,  and  when  we  consider  the  time  and  re- 
sults of  the  early  irrigation  his  success  must  be  taken 
as  a  matter  of  course.  The  simple  ditches  then  in  use 
were  the  single  instrument  by  which  land  worth  noth- 
ing had  been  brought  into  a  high  state  of  cultivation 

106 


COMMERCIAL.    IRRIGATION    ENTERPRISES         107 

and  great  value.  It  was  easy  therefore  to  picture  the 
rich  returns  of  thousands  of  acres  of  such  land,  now 
barren  and  worthless,  when  under  a  well  constructed 
canal.  No  argument  was  necessary  to  convince  the  in- 
vestor that  the  real  wealth  lay  in  the  water  and  that 
a  system  of  selling  water  for  irrigation  was  better 
than  a  gold  mine. 

We  now  know  that  most  of  the  systems  thus  built 
were  financial  disasters  and  that  the  failure  was  not 
due  to  either  lack  of  land  or  water,  or  want  of  engi- 
neering skill.  The  chief  error  was  the  neglect  to  "tie" 
the  land  to  the  water.  The  promoters  and  investors 
were  right  in  believing  that  the  land  without  the  water 
must  remain  valueless,  but  they  erred  in  thinking  that 
the  settlers  on  the  land  under  the  system  would 
promptly  take  water  on  any  terms  dictated.  The  set- 
tler, unfortunately,  was  in  most  cases  a  mere  "sooner," 
a  waiter  of  fortune  who  hurried  to  the  choice  land, 
there  to  stay  until  bought  out  by  the  real  home  builder. 
During  the  eighties  most  of  the  land  to  be  covered 
by  the  larger  systems  was  government  land  and  there 
were  no  statutes  by  means  of  which  the  canal  com- 
pany could  protect  itself  against  filings  by  "sooners" 
or  secure  a  lien  upon  the  land  for  its  unpaid  water 
charges.  Every  western  state  affords  illustrations  of 
large  sums  lost  to  its  investors  in  such  irrigation  enter- 
prises (now  called  commercial  enterprises)  and  intelli- 
gent capital  today  will  invest  in  no  scheme  where  land 
and  water  do  not  go  together.  In  fact,  the  attractive 
enterprise  today  is  really  a  land  deal  to  which  the 
construction  of  the  irrigation  system  is  but  incidental. 

The  following  table  (from  the  census  statistics) 
shows  the  total  area  irrigated  in  1909,  the  area  irri- 
gated in  1909  by  commercial  enterprises,  and  the  per- 
centage of  the  total  irrigated  by  the  latter.  The  com- 
mercial enterprise  differs  from  the  mutual  or  co-opera- 
tive enterprise  in  that  the  former  supplies  water  for 
compensation  to  parties  having  no  interest  in  the 
works  and  the  latter  supplies  water  to  stockholders 
only. 


108  WESTERN    WATER   LAW 

Acreage  Irrigated  In   1909. 

Percentage 

Commer-     by  Commer- 
cial Enter-  cial  Enter- 
State.                                   Total.  prises.  prises. 

Arid  States    13,739,499  1,444,806  10.6 

California 2,664,104  746,265  10.6 

Washington 334,378  66,911  20.0 

Texas      (exclusive      of 

rice)    ..'. 164,283  73,440  16.3 

Oregon    686,129  77,387  11.3 

South  Dakota 63,248  6,300  10. 

Nebraska    255,950  24,834  9.7 

Wyoming     1,133,302  87,935  7.8 

Utah    999,410  70,227  7.0 

Colorado    2,792,032  159,457  5.9 

Montana    1,679,084  62,544  3.7 

New   Mexico    461,718  15.690  3.4 

Idaho     1,430,848  44,872  3,1 

Nevada   701,833  8,864  1.3 

Arizona   320,051  80  .1 

Kansas    37,479  

North  Dakota 10,248  

Oklahoma 5,402  

As  California  has  comparatively  so  large  a  per- 
centage of  commercial  enterprises,  it  might  be  inferred 
that  such  projects  are  especially  numerous  and  popu- 
lar. The  fact  is,  however,  that  the  large  acreage  so 
served  is  under  a  small  number  of  unusually  extensive 
systems  and  that  the  mutual  systems  are  the  rule. 

The  commercial  enterprises  may  be  divided  into 
three  groups  as  follows : 

First .  Enterprises  furnishing  water  on  annual 
rental  basis  only; 

Second.      Enterprises    selling    water    rights    and 
charging  either  a  fixed  or  variable  annual  rate  in  addi 
tion; 

Third.  Enterprises  selling  water  rights  and  a  pro 
rata  interest  in  the  irrigated  system.  The  enterprises 
of  this  group  therefore  become  mutual  enterprises. 

A  few  California  examples  of  each  group  follow : 
Examples  of  Companies  "Renting"  Water. 

The  Kern  County  Land  Company  diverts  water 
from  the  Kern  River  for  the  irrigation  of  about  250,000 
acres  in  the  vicinity  of  Bakersfield.  Although  most 
of  the  water  is  used  to  irrigate  its  own  lands,  the  com- 
pany controls  sixteen  subsidiary  canal  companies. 
Water  is  supplied  at  the  rate  of  75  cents  per  cubic  foot 
per  second,  flowing  for  24  hours — equivalent  to  37.5 
cents  per  acre  foot. 

The  San  Joaquin  and  Kings  River  Canal  and  Irri- 


COMMERCIAL   IRRIGATION   ENTERPRISES         109 

gation  Company  diverts  water  from  the  San  Joaquin 
River  for  the  irrigation  of  about  100,000  acres  on  the 
west  side  of  the  San  Joaquin  Valley  in  Fresno,  Merced 
and  Stanislaus  Counties.  The  water  rate  has  been 
fixed  by  the  Boards  of  Supervisors  as  follows : 

Stanislaus  County $2.35  per  cu.  ft.  per  sec.  for  24  hrs. 

Merced  County   1.90    "      "    "      "     "      "      "    * 

Fresno  County  1.25    "      "    "      "     "      "      "    " 

The  Pacific  Gas  &  Electric  Company  owns  and  op- 
erates a  number  of  canals  diverting  water  from  the 
Yuba  and  Bear  Rivers  in  Placer  County.  The  canals 
were  formerly  used  for  hydraulic  mining  but  are  now 
used  for  irrigation  and  municipal  supply.  No  water 
rights  are  sold  but  the  rates  for  the  various  kinds  of 
service  have  been  fixed  annually  by  the  County  Super- 
visors. 

Examples  of  Companies  Selling  Water  Rights  But  No 
Interest  in  System. 

The  San  Diego  Land  and  Town  Company  owns 
the  Sweetwater  reservoir  and  canal  system  in  San 
Diego  County.  It  has  sold  land  under  its  system  with 
and  without  a  water  right,  has  sold  water  rights  to 
other  lands,  and  has  furnished  water  on  a  rental  basis 
to  lands  having  no  water  right. 

The  California  Development  Company  diverts 
water  from  the  Colorado  River  for  the  irrigation  of 
about  225,000  acres  in  the  Imperial  Valley.  It  has 
contracted  with  several  mutual  companies  to  supply 
water  at  the  rate  of  50  cents  per  acre  foot — 4  acre  feet 
being  sufficient  for  one  acre.  The  mutual  companies 
sell  water  rights  on  the  basis  of  one  share  of  stock 
to  the  acre,  at  the  rate  of  $15  to  $25  per  acre,  which 
amounts  must  be  paid  to  the  California  Development 
Company.  The  water  user  pays  an  additional  sum  of 
about  20  cents  per  acre  to  the  mutual  companies  for 
maintenance  and  operation. 

The  Fresno  Canal  &  Irrigation  Company  and  the 
Consolidated  Canal  Company  are  under  the  same  man- 
agement and  divert  water  from  the  Kings  River  for 
the  irrigation  of  about  360,000  acres  in  Fresno  County. 
Water  rights  are  sold  at  the  rate  of  $10  per  acre  for 


110  WESTERN    WATER    LAW 

first  class  rights  under  the  Fresno  Canal  and  Irriga- 
tion system  and  $5  per  acre  for  second  class  rights 
under  that  system  and  rights  under  the  Consolidated. 
The  rights  are  on  the  basis  of  one  cubic  foot  per  second 
to  160  acres.  There  is  an  additional  annual  charge  of 
62.5  cents  per  acre  under  the  Fresno  and  75  cents 
per  acre  under  the  Consolidated. 

The  Crocker-Huffman  Land  &  Water  Company 
diverts  water  from  the  Merced  River  for  the  irrigation 
of  about  60,000  acres  in  the  vicinity  of  Merced.  Water 
rights  on  the  basis  of  one  cubic  foot  for  160  acres,  are 
sold  at  the  rate  of  $10  per  acre,  with  an  additional 
annual  maintenance  charge  of  $1  or  $2  per  acre. 
Examples  of  Companies  Selling  Water  Rights  Carry- 
ing an  Interest  in  System. 

The  Patterson  Land  Company  diverts  water  from 
the  San  Joaquin  River  for  the  irrigation  of  19,000 
acres  on  the  "West  Side"  in  Stanislaus  County — all 
owned  by  the  company.  The  irrigation  system  has 
been  transferred  to  the  Patterson  Water  Company. 
Water  rights  on  the  basis  of  2  to  3  acre-feet  per  acre 
are  sold  with  the  land  at  prices  from  $200  to  $500  per 
acre.  An  additional  annual  charge  of  $3  for  2  acre 
feet  and  $1.50  for  the  extra  acre  foot  is  made.  A 
share  of  stock  in  the  water  company  is  given  with 
each  acre  sold,  but  the  land  company  will  retain  man- 
agement until  75  per  cent  of  the  land  is  sold,  after 
which  the  land  purchasers  will  be  given  control. 

The  Sacramento  Valley  Irrigation  Company  has 
purchased  the  old  Central  Canal  and  is  extending  the 
canal  and  lateral  system  to  cover  about  150,000  acres 
on  the  "West  Side"  in  Glenn  and  Colusa  Counties. 
The  company  is  a  land  company  and  is  purchasing 
all  the  irrigable  land  under  the  line  of  canal  which  it 
can  secure.  The  Sacramento  West  Side  Irrigation 
Company  has  been  formed  to  operate  the  system. 
Water  rights  on  the  basis  of  1^2  acre  feet  per  acre 
will  be  sold  with  the  land  at  prices  from  $125  per  acre 
upwards.  An  additional  annual  operation  and  main- 
tenance charge  will  be  made.  A  share  of  stock  in  the 
West  Side  Company  will  be  given  with  each  acre  of 


COMMERCIAL    IRRIGATION    ENTERPRISES         111 

land,  so  that  the  land  purchasers  will  ultimately  oper- 
ate and  manage  the  system. 

Most  of  the  larger  mutual  companies  in  southern 
California  were  started  as  commercial  enterprises  of 
this  group.  There  is  probably  no  better  example  than 
the  Gage  Canal  which  is  known  as  one  of  the  most 
highly  developed  systems  in  the  country.  It  diverts 
water  from  the  Santa  Ana  River  for  the  irrigation  of 
about  10,000  acres  near  Riverside.  The  Riverside 
Trust  Company  originally  owned  the  land  and  canal 
system.  Each  acre  sojd  carried  a  water  right  of  one- 
fifth  of  an  inch  and  two  shares  in  the  Gage  Company. 
The  Colorado  Anti-Royalty  Act. 

In  the  early  eighties  a  number  of  canal  systems 
were  built  in  Colorado  which  sold  water  rights  and 
also  charged  an  annual  rate.  This  custom  was  stopped 
by  the  so-called  Anti-Royalty  Act  of  1887,  which  made 
it  unlawful  for  a  ditch  owner  to  accept  payment  cor- 
responding to  that  for  our  right  before  supplying 
water  at  the  annual  rate.  To  evade  the  provisions 
of  the  Act  water  rights  were  sold  providing  that  when 
water  rights  amounting  to  the  estimated  capacity  of 
the  canal  were  sold,  the  company  would  transfer  the 
system  to  a  new  company  formed  exclusively  of  water 
users.  In  the  early  days  the  estimated  capacity  was 
placed  so  high  that  it  did  not  become  necessary  to  form 
the  new  company  and  relinquish  the  works.  In  more 
recent  years,  however,  such  contracts  have  been  exe- 
cuted and  the  capacity  fixed  by  the  company  in  good 
faith  and  have  been  extensively  used,  not  only  in  Colo- 
rado but  in  Nebraska  and  Oregon  also. 

The  Regulation  of  Commercial  Enterprises. 

At  an  early  date  statutes  were  passed  in  a  number 
of  the  western  states  authorizing  the  county  super- 
visors, or  commissioners,  to  fix  the  rate  at  which  com- 
mercial enterprises  should  furnish  water  to  irrigators. 
(The  statutes  of  the  last  session  in  some  of  the  states 
transfer  this  power  to  the  railroad  or  public  service 
commissions.)  In  the  absence  of  such  rate  fixing 
the  rates  established  by  the  water  company  con- 
trolled. The  state  and  federal  courts  in  California  have 


112  WESTERN    WATER    LAW 

vacillated  in  their  determination  as  to  whether  rates 
agreed  upon  in  formal  water  right  contracts,  executed 
prior  to  the  rate  fixing  by  the  county  board,  should  be 
enforced  after  lower  rates  had  been  fixed  by  such 
board.  On  March  2,  1897,  the  California  legislature 
amended  the  act  providing  for  such  regulation  by 
adding  a  new  section  expressly  stating  that  nothing  in 
the  original  act  shall  be  construed  to  "invalidate  any 
contract  already  made."  The  new  section  was  inter- 
preted by  the  California  Supreme  Court  in  Stanislaus 
Water  Company  v.  Bachman  (152  Cal.  716),  wherein 
it  was  held,  "And  under  the  present  statute  the  con- 
tract rights  prevail  in  all  cases,  the  boards  of  super- 
visors being  powerless  to  effect  or  interfere  with 
them." 

In  the  more  recent  case  of  Leavitt  v.  Lassen  Irri- 
gation Company  (157  Cal.  82)  decided  December  24, 
1909,  the  Supreme  Court  said : 

The  language  of  this  court  in  Stanislaus  Water  Company  v. 
Bachman  *  *  *  must  be  construed  in  the  light  of  the  facts 
there  presented.  *  *  *  * 

If  it  be  conceived  that  Section  552  Civil  Code,  is  designed  to 
confer  upon  any  particular  consumer  any  special,  permanent,  and 
preferential  right  above  what  is  here  stated,  that  effort,  being 
plainly  violative  of  the  Constitution,  would  be  held  void.  The 
same  declaration  applies  to  the  provisions  of  the  act  entitled 
*  *  *  *  approved  March  12,  1889,  and  of  the  amendment 
of  that  act  by  the  act  approved  May  2,  1897. 

The  Leavitt  case  deals  with  a  prior  and  perpetual 
water  right  reserved  by  the  former  owner  (the  plain- 
tiff) in  selling  a  commercial  enterprise  to  the  company 
(defendant).  It  seems  that  such  an  exclusive  and 
preferential  right  could  be  easily  distinguished  from 
the  ordinary  water  right  provided  for  in  the  amend- 
ment of  1897,  but  as  so  many  capable  attorneys  hold 
to  the  contrary  it  would  be  unwise  to  organize  an  irri- 
gation company  with  the  idea  of  establishing  by  con- 
tract profitable  rates  which  could  not  be  lowered  by 
the  county  supervisors.* 

*  Since  the  above  was  written  the  U.  S.  Circuit  Court  of 
Appeals,  Ninth  Circuit,  has  decided  in  Imperial  Water  Co.  No.  5 
v.  Holabird  (197  Fed.  4)  that  the  water  right  contract  therein 
considered  is  void. 


COMMERCIAL   IRRIGATION   ENTERPRISES         113 

Who  Owns  the  Water  Right. 

The  expression  "selling  water"  is  so  commonly 
used  that  few  laymen  ever  doubt  that  the  irrigation 
company  is  the  owner  of  the  water  right  and  that,  in 
selling  its  system  or  in  rate  fixing,  it  is  entitled  to  a 
considerable  sum  for  such  right.  It  is  surprising  to 
most,  therefore,  to  learn  that  the  Supreme  Court  of 
Colorado,  so  long  ago  as  1887,  in  Wheeler  v  Northern 
Colorado  Irrigation  Company  (17  Pac.  487)  said : 

It  (the  irrigation  company)  exists  largely  for  the  benefit  of 
others ;  being  engaged  in  the  business  of  transporting,  for  hire, 
water  owned  by  the  public  to  the  people  owning  the  right  to 
its  use. 

The  question  was  not  a  direct  issue  in  California 
until  the  recent  case  of  San  Joaquin  &  Kings  River 
Canal  and  Irrigation  Company  v.  Stanislaus  County 
(191  Fed.  875)  decided  September  18,  1911.  The  com- 
pany had  brought  suit  against  the  county  to  enjoin 
the  enforcement  of  water  rates  fixed  by  the  County 
Supervisors.  One  of  its  contentions  was  that  its  water 
rights  were  worth  $1,000,000,  and  that  nothing  had 
been  allowed  for  them  in  the  Supervisors'  valuation. 
After  a  careful  consideration  of  the  authorities,  Judge 
Morrow  refused  to  accept  the  contention  in  the  fol- 
lowing words : 

The  claim,  as  stated,  is  manifestly  not  sufficient  to  state 
a  right  of  diversion.  It  must  appear,  further,  that  the  com- 
plainant is  either  the  owner  of  land  for  which  the  water  is  being 
appropriated  for  a  beneficial  use,  or  that  the  water  is  being 
diverted  for  the  purpose  of  being  carried  by  the  complainant 
to  consumers  who  own  land  for  which  the  water  is  being 
appropriated  for  a  beneficial  use,  and  that  the  water  is  being 
so  used.  The  complainant  in  this  case  is  not  the  owner  of  any 
land  for  which  the  water  is  being  appropriated.  The  complain- 
ant's right  to  divert  the  water  of  the  river  is  therefore  based 
upon  and  is  measured  and  limited  by  the  beneficial  use  of  cer- 
tain consumers  for  which  the  water  is  being  appropriated.  But, 
if  the  amount  required  by  these  consumers  for  a  beneficial  use 
is  not  1350  cubic  feet  of  water  per  second,  then  complainant  has 
no  right  to  divert  that  quantity  of  water ;  or  if,  for  example,  these 
consumers  require  only  100  cubic  feet  per  second  for  beneficial  use, 
then  that  would  be  the  basis  and  measure  and  limit  of  com- 


114  WESTERN   WATER   LAW 

plainant's  right  to  divert  water  from  the  river,  and  not  the 
capacity  of  complainant's  headworks,  canals  and  ditches  used 
in  making  such  diversion.  The  water  right  must,  therefore,  be 
the  right  of  the  consumer  and  attached  to  his  land,  and  not  the 
right  of  the  complainant  attached  to  its  canal  system. 

The  irrigation  company  has  appealed  to  the  Cir- 
cuit Court  of  Appeals  and  the  case  will  probably  be 
carried  to  the  Supreme  Court  of  the  United  States. 
The  reader  is  referred  to  the  opinion  as  an  excellenc 
exposition  of  the  principles  underlying  not  only  the 
question  of  ownership  of  water  rights  but  also  the 
many  other  questions  regarding  rate  fixing  for  public 
utilities. 

As  the  cases  now  stand  the  Supreme  Courts  of 
Arizona,  Colorado  and  Nebraska  and  the  U.  S.  Circuit 
Court  in  California  positively  hold  that  the  water  right 
belongs  to  the  user  and  not  to  the  irrigation  company. 
The  only  Supreme  Court  indicating  to  the  contrary  is 
that  of  Montana  in  Bailey  v.  Tintinger  (122  Pac.  575) 
decided  March  5,  1912.  The  case  was  simply  one  to 
determine  the  relative  rights  of  a  number  of  ditch  own- 
ers and  the  Court,  instead  of  applying  the  accepted 
rule  that  every  appropriator  must  be  given  a  reason- 
able time  after  the  completion  of  the  ditch  in  which 
to  apply  the  water  to  beneficial  use,  holds  that  under 
the  Montana  statutes  the  appropriation  must  be  con- 
sidered complete  upon  the  completion  of  the  ditch.  In 
the  course  of  its  opinion  the  court  says  : 

To  deny  the  right  of  a  public  service  corporation  to  make 
an  appropriation  independently  of  its  users  or  future  customers 
*  *  *  would  be  to  discourage  the  formation  of  such  corpor- 
ations and  greatly  retard  the  reclamation  of  arid  lands  in 
localities  where  the  magnitude  of  the  undertaking  is  too  great 
for  individual  enterprise. 

In  view  of  the  issue  before  the  court  the  above  ex- 
pression should  be  considered  a  dictum  only.  It  is 
another  illustration  of  the  dire  need  of  rational  water 
right  legislation  in  Montana. 

A  further  statement  of  the  present  and  future 
status  of  commercial  irrigation  enterprises  will  be 
made  in  a  later  chapter  after  the  discussion  of  other 
types  of  irrigation  enterprises. 


CHAPTER  X. 

THE  DESERT  LAND  ACT  AND  THE  CAREY 
ACT. 

When  the  arid  public  lands  were  first  occupied 
and  irrigated  there  was  no  act  providing  for  their  alien- 
ation other  than  the  homestead  and  pre-emption  acts, 
both  passed  in  1862.  The  first  act  to  specially  provide 
for  the  conditions  of  the  irrigation  states  was  the 
desert  land  act  of  March  3,  1877,  which,  slightly 
amended,  is  still  in  force.  The  only  public  land  and 
irrigation  states  in  which  the  act  is  not  operative  are 
Kansas  and  Nebraska. 

Only  desert  lands  are  subject  to  entry  and  it  has 
been  held  that  the  following  lands  are  not  desert: 
Lands  which  produce  native  grasses  sufficient  to  make 
an  ordinary  crop  of  hay  in  usual  seasons ;  lands  which 
will,  without  irrigation,  produce  a  reasonably  remun- 
erative crop  of  any  kind;  lands  bearing  a  natural 
growth  of  trees. 

As  entry  may  be  made  by  any  citizen,  twenty-one 
years  of  age,  a  woman,  married  or  single,  is  entitled 
to  do  so.  Under  the  original  act,  one  section,  or  640 
acres)  was  the  limit  of  entry,  but  by  the  act  of  March 
3,  1891,  it  was  restricted  to^32Q  acres. 

To  make  entry  an  application  must  be  filed  at  the 
local  land  office,  showing  that  applicant  is  a  citizen, 
or  has  declared  his  intention  to  become  such ;  that  he 
is  21  years  of  age  or  over;  that  he  is  a  bona  fide  resi- 
dent of  the  State  in  which  the  land  lies ;  that  he  has 
not  previously  made  desert  land  entry  or  taken  an 
assignment  of  suchfthat  he  has  not  since  August  30, 
1890,  acquired  title  to  nor  is  claiming  under  any  of  the 
agricultural  lands  laws,  including  the  lands  applied  for, 

115 


116  WESTERN    WATER   LAW 

lands  which  in  the  aggregate  exceed  320  acres;  and 
that  he  intends  to  reclaim  the  lands  described  in  the 
application  through  irrigation  within  four  years. 

The  act  of  March  3,  1891,  provided  for  the  assign- 
ment of  the  entire  entry,  but  the  act  of  March  28,  1908, 
allows  an  assignment  in  whole  or  in  part  —  except  that 
not  less  than  a  40-acre  subdivision  can  be  assigned. 
The  latter  act  forbids  the  assignment  of  an  entry  to  a 
corporation  or  an  association. 

With  the  application  a  map  must  be  filed  showing 
the  proposed  method  of  irrigating  the  land  described, 
and  a  payment  of  25  cents  per  acre  must  be  made.  Be- 
fore the  end  of  each  of  the  first  three  years  after  entry 
proof  must  be  filed  at  the  local  land  office  showing 
the^expenditure  of  one  dollar  per  acre  during  the  year. 
This  "annual  proof"  must  be  sworn  to  and  must  be 
corroborated  by  the  affidavits  of  two  reputable  wit- 
nesses. Expenditures  for  ditches,  dams,  fences,  roads, 
the  first  breaking  of  the  soil,  barns  and  other  stock 
buildings,  and  wells  for  irrigation  purposes,  will  be 
allowed.  Expenditures  for  stock  in  an  irrigation  com- 
pany to  furnish  water  to  land  entered  will  also  be 
allowed. 

The  entryman,  or  his  assignee,  is  allowed  four 
years  from  date  of  entry  to  satisfy  the  requirements 
of  the  act,  but  he  _may_jnake._ 


patent  as  soon  as  he  has  expended  three  dollars  per 
acre,  has  reclaimed  all  the  irrigable  land  included  in 
his  entry,  and  has  cultivated  one-eighth  of  the  entire 
area  entered.  When  possible  under  the  state  laws,  the 
final  proof  must  show  an  absolute  water  right  for  the 
irrigation  of  the  land  entered.  Up  to  six  years  ago  the 
Department  was  very  lax  in  passing  upon  final  proofs, 
but  under  the  present  regulations  a  rigid  examination 
is  made  of  the  water  right  and  the  extent  of  irriga- 
tion and  cultivation.  At  the  time  of  making  final  proof 
a  payment  of  one  dollar  per  acre  must  be  made. 

As  there  is  no  residence  requirement  in  the  desert 
land  act  other  than  to  reside  in  the  state  and  as  pay- 
ment for  the  land  itself  is  only  $1.25  per  acre,  the  act 
has  been  very  popular.  In  the  past  many  irrigation 


r 


CAREY    ACT  117 

companies  secured  large  areas  of  public  land  by  stipu- 
lating with  entrymen  to  furnish  water  right  and  take 
in  return  one-half  or  more  of  the  land  entered.  Such 
contracts  were  illegal  and  under  the  present  vigilance 
are  not  tolerated.  It  is  allowable,  however,  in  con- 
tracting with  an  irrigation  company  for  a  water  right 
for  a  desert  entry  to  stipulate  that  on  default  of 
the  specified  cash  payment  the  entryman  shall  deed  to 
the  company  a  portion,  or  all,  of  the  land  entered.  It 
is  evident  that  the  permissible  contract  may  result  in 
the  same  end  as  the  prohibited  contract,  but,  on  its 
face  at  least,  it  is  not  an  agreement  to  convey. 

In  the  few  states,  like  California,  which  have  not  ac- 
cepted the  provisions  of  the  Carey  act,  the  desert  land 
act  is  the  best  method  of  securing  the  settlement  of 
public  lands  under  a  private  irrigation  project. 

The    Carey    Act. 

In  the  last  chapter  reference  was  made  to  the  many 
failures  of  private  irrigation  companies  organized  to 
irrigate  public  land — the  principal  cause  for  which  'be- 
ing the  inability  of  the  company  to  restrain  "sooners" 
or  mere  speculators  from  entering  the  land,  and  to 
secure  a  sufficient  lien,  upon  such  land  as  subscribed 
for  water  rights,  for  nonpayment  of  annual  charges. 
To  relieve  this  situation  Congress  in  1894  passed  the 
so-called  "Carey  Act" — named  after  Senator  Carey  of 
Wyoming-,  who  introduced  it. 

The  act  authorized  the  Secretary  of  the  Interior, 
with  the  approval  of  the  President,  to  contract  with 
each  state  having  desert  lands  for  the  free  grant  to  the 
state  of  not  exceeding  one  million  acres  of  such  lands 
"as  the  state  may  cause  to  be  irrigated,  reclaimed,  oc- 
cupied, and  not  less  than  twenty  acres  of  each  one 
hundred  and  sixty-acre  tract  cultivated  by  actual  set- 
tlers, within  ten  years  after  the  passage  of  this  act." 
Before  any  segregation  of  land  was  allowed,  the  state 
had  to  file  a  map  of  the  land  and  the  plan  proposed  for 
its  irrigation.  As  satisfactory  proof,  according  to  the 
regulations  of  the  Secretary  of  the  Interior,  was  made 
by  the  state  "that  any  of  said  lands  are  irrigated,  re- 


118  WESTERN   WATER    LAW 

claimed,  and  occupied  by  actual  settlers,  patents  shall 
be  issued  to  the  state  or  its  assigns  for  said  lands  so 
reclaimed  and  settled :  Provided,  That  said  states 
shall  not  sell  or  dispose  of  more  than  one  hundred  and 
sixty  acres  of  said  lands  to  any  one  person." 

The  original  act  was  a  great  step  in  advance  in 
that  it  allowed  the  segregation  of  all  the  public  lands 
under  an  irrigation  project  and  thus  precluded  the 
earlier  type  of  speculator,  but  it  failed  to  provide  for  a 
lien  in  case  of  nonpayment  of  water  right  charges. 
The  act  of  June  11,  1896,  met  this  need  by  authorizing 
liens  to  be  created  by  the  state  for  the  actual  cost  of 
reclamation  and  reasonable  interest,  and  kby  providing 
that  patents  shall  issue  to  the  state,  without  regard  to 
settlement  or  cultivation,  as  soon  as  a  proper  irriga- 
tion system  and  ample  water  supply  are  furnished.  It 
is  specifically  provided  in  this  amendatory  act  that  the 
United  States  shall  in  no  way  be  liable  for  such  lien, 
or  any  part  thereof. 

As  stated  above,  the  original  act  provided  that  the 
lands  segregated  must  be  reclaimed  as  specified  within 
ten  yearslafter  the  passage  of  the  act.  No  change  was 
made  in  tnis  severe  requirement  until  the  act  of  March 
3,  1901,  which  provided  that  the  ten  years'  period 
"shall  begin  to  run  from  the  date  of  approval  by  the 
Secretary  of  the  Interior  of  the  State's  application  for 
the  segregation  of  such  lands."  It  further  authorizes 
the  Secretary  of  the  Interior  in  his  discretion  to  grant 
an  extension  not  exceeding  five  years. 

The  original  act  applied  only  to  states.  The  act 
of  February  18,  1909,  extended  the  provisions  of  the 
act  to  the  territories  of  Arizona  and  New  Mexico.  The 
act  of  March  15,  1910,  authorized  the  Secretary  of  the 
Interior  to  temporarily  withdraw  from  entry  areas  em- 
bracing lands  for  which  a  state  proposes  to  make  ap- 
plication, pending  the  investigation  and  survey  pre- 
liminary to  the  filing  of  the  regular  application  for  the 
segregation. 

The  Secretary  of  the  Interior  has  prepared  regu- 
lations which  must  be  followed  by  the  states  in  making 
Carey  act  segregations.  No  segregation  is  now 


CAREY    ACT  119 

proved  until  examined  on  the  ground  and  reported 
favorably  by  a  government  engineer.  This  course  has 
been  criticized  by  some  as  reflecting  upon  the  states, 
•but  as  the  government  is  the  owner  of  the  land  it 
should  not  be  asked  to  grant  such  until  all  the  condi- 
tions precedent  thereto  have  been  fulfilled  to  the  sat- 
isfaction of  its  representatives.  The  following  state- 
ment from  the  annual  report  of  the  Commissioner  of 
the  General  Land  Office  for  1911  is  in  point: 

The  importance  of  this  (the  examination  of  projects)  can 
not  be  overstated,  for  not  only  will  the  lands  remain  segregated 
for  a  long  period  of  time,  if  the  order  therefor  is  once  made, 
but  in  making  such  segregation  the  department  is  practically 
committed  to  the  feasibility  of  the  proposition  submitted  by  the 
state,  and  people  thereafter  dealing  with  the  state  are  in  a  great 
degree  entitled  to  regard  the  proposition  of  the  state  as  having 
received  the  endorsement  of  the  department. 

The  provisions  of  the  Carey  act  have  been  ac- 
cepted by  Colorado,  Idaho,  Montana,  Nevada,  New 
Mexico,  Oregon,  South  Dakota,  Utah,  Washington  and 
Wyoming.  During  the  fiscal  year  ending  June  30th, 
1911,  3,193,314  acres  were  segregated  to  the  states. 
The  total  area  patented  under  the  act  up  to  June  30, 
1911,  is  388,404  acres.  The  present  activity  in  such 
projects  is  shown  by.  the  following  statement  by  the 
Comimissioner  of  the  General  Land  Office  (Annual 
Report,  1911) : 

A  conservative  estimate  would  indicate  that  there  will  be 
4,000,000  acres  included  in  segregation  lists  for  Carey  act  projects 
during  the  coming  year  (1911-1912).  During  the  last  fiscal  year 
1,650,000  acres  of  selections  were  examined.  There  have  been 
withdrawn  for  exploration  and  survey  under  the  act  of  March 
15,  1910,  3,500,000  acres. 

State  Legislation. 

Idaho  and  Wyoming  were  especially  active  in  pre- 
paring for  development  under  the  Carey  act.  There 
was  close  co-operation  between  the  officials  of  the 
two  states  and  their  original  legislation  in  this  regard 
was  practically  the  same,  and,  as  amended  from  time 
to  time,  has  served  as  a  model  for  the  other  states. 

Under  the  special  state  legislation  the  operation 


120  WESTERN    WATER    LAW 

of  the  Carey  act  as  far  as  the  state  is  concerned  is  en- 
trusted to  a  board.  The  irrigation  project  is  not  con- 
structed by  the  state,  but  by  an  individual,  associa- 
tion or  company  contracting  with  the  state  through  the 
board.  To  initiate  the  enterprise  the  contractor  files 
with  the  board  a  request  for  the  withdrawal  or  segre- 
gation of  the  desired  tract  of  desert  public  land  and 
a  proposal  to  -construct  the  irrigation  system,  stating 
the  source  of  water  supply,  the  location  and  dimen- 
sions of  the  proposed  works,  the  estimated  cost  of  con- 
struction, and  the  price  and  terms  at  which  perpetual 
water  rights  will  'be  sold.  The  request  must  be  accom- 
panied by  a  certificate  of  the  state  engineer  showing 
that  the  contractor  has  made  proper  application  to 
appropriate  the  necessary  water.  A  certified  check  of 
specified  amount  must  be  deposited  with  the  board  as  a 
guarantee  that  the  contractor  will  execute  a  contract 
with  the  state  in  case  the  segregation  is  made. 

The  state  engineer  is  required  to  report  on  the 
feasibility  of  the  scheme,  and  if  his  report  be  favorable 
the  board  applies  to  the  Secretary  of  the  Interior  for 
the  segregation  of  the  desired  tract.  If  granted,  the 
board  and  the  contractor  execute  an  agreement  which 
includes  complete  plans  and  specifications  regarding 
the  execution  of  the  proposed  work,  and  specifies  the 
price,  terms,  and  conditions  under  which  water  rights 
(carrying  a  proportional  part  of  the  system)  will  be 
sold  to  settlers.  The  contractor  must  furnish  a  bond, 
of  amount  prescribed  by  statute  or  regulation  of  board, 
as  a  guaranty  of  faithful  performance  of  contract. 

As  soon  as  the  segregation  has  been  made  and 
work  initiated  by  the  contractor  on  a  proper  'basis,  the 
board  must  publish  notice  stating  that  the  lands  segre- 
gated are  open  for  settlement  and  the  price  which  must 
be  paid  to  the  state  for  the  land  and  to  the  contractor 
for  the  water  right.  Any  one  intending  to  settle  with- 
in the  project  must  first  execute  a  water  right  contract 
with  the  contractor  for  the  tract  upon  which  he  intends 
to  file.  He  then  applies  to  the  board  for  the  tract,  and 
if  successful  secures  a  certificate  of  location  on  pay- 
ment of  one-half  the  price  of  the  land  fixed  by  the 


CAREY    ACT  121 

state.  He  must  establish  his  residence  on  the  tract 
within  six  months  after  water  is  ready  for  delivery  and 
must  cultivate  at  least  one-sixteenth  of  the  land  en- 
tered during  the  first  year  and  at  least  one-eighth  dur- 
ing the  second  year.  He  must  make  final  proof  within 
three  years  and  complete  his  payment  to  the  state.  The 
latter  payment  is  generally  only  fifty  cents — twenty- 
five  cents  to  be  paid  on  entry  and  twenty-five  cents 
on  final  proof.  The  statutes  provide  for  the  control  of 
the  system  being  given  to  the  water  users  thereunder, 
but  the  condition  precedent  thereto  varies  greatly. 
Idaho  gives  control  when  35  per  cent  of  the  total  lien 
has  been  satisfied,  while  South  Dakota  leaves  the  con- 
trol with  the  contractor  until  90  per  cent  of  the  land 
has  been  sold.  In  Oregon  the  system  must  be  turned 
over  to  the  settlers  within  ten  years. 

Development  Under  the  Carey  Act. 

The  data  for  the  following  statistical  statement  of 
the  work  accomplished  in  the  various  states  under  the 
Carey  act  was  taken  from  the  last  biennial  reports 
(1909-1910)  of  the  land  or  Carey  act  'boards  and  of  the 
state  engineers.  It  was  assembled  by  Mr.  A.  P.  Stover, 
of  Irrigation  Investigations  of  the  United  States  De- 
partment of  Agriculture,  in  his  very  comprehensive 
paper  entitled  "Irrigation  Under  the  Carey  Act,"  pub- 
lished in  the  Annual  Report  of  the  Office  of  Experi- 
ment Stations  for  the  year  ending  June  30,  1910.  The 
data,  with  the  exception  of  the  area  granted,  is  for  the 
close  of  1910. 

Colorado. — The  total  area  granted  to  the  state,  not 
including  the  Ute  Indian  Reservation  grant,  is  1,000,- 
000  acres;  the  total  area  segregated,  contracted  and 
applied  for  was  1,121,940  acres;  the  area  of  reclaimed 
land  sold  to  settlers  was  34,000  acres ;  the  number  of 
projects  being  developed  was  20;  and  the  cost  of  water 
rights  ranged  from  $15  to  $45  per  acre. 

Idaho. — The  total  area  granted  to  the  state  is  3,000,- 
000  acres  (2,000,000  acres  having  been  added  by  Con- 
gress in  1908)  ;  the  total  area  segregated  was  2,630,833 
acres;  the  area  of  reclaimed  land  sold  to  settlers  was 


122  WESTERN   WATER    LAW 

270,184  acres;  the  number  of  projects  being  developed 
was  42 ;  and  the  cost  of  water  rights  ranged  from  $20 
to  $100  per  acre,  with  an  average  of  $28  per  acre. 

Montana. — The  total  area  granted  to  the  state  is 
1,000,000  acres  ;the  total  area  segregated  was  411,326 
acres;  the  area  of  reclaimed  land  sold  to  settlers  was 
45,000  acres;  and  the  number  of  projects  being  de- 
veloped was  13. 

Nevada. — The  total  area  granted  to  the  state  is 
2,000,000  acres;  the  total  area  segregated  was  173,215 
acres ;  and  the  number  of  projects  being  developed  or 
investigated  was  13. 

Oregon. — The  total  area  granted  to  the  state  is 
1,000,000  acres;  the  total  area  segregated  was  593,124 
acies;  the  number  of  projects  being  developed  was  16; 
and  the  cost  of  water  rights  ranged  from  $10  to  $60  per 
acre. 

Wyoming. — The  total  area  granted  to  the  state 
is  2,000,000  acres  (1,000,000  acres  having  been  added 
by  Congress  in  1908)  ;  the  total  area  segregated  was 
1,390,365  acres;  the  area  of  reclaimed  land  sold  to  set- 
tlers was  130,000  acres;  the  number  of  projects  being 
developed  was  63 ;  and  the  cost  of  water  rights  ranged 
from  $10  to  $65  per  acre,  with  an  average  of  $15  per 
acre. 

Practically  nothing  had  been  done  under  the  Carey 
act  at  the  close  of  1910  in  New  Mexico,  South  Dakota, 
or  Washington.  In  Utah  ten  projects  were  being  ex- 
amined and  one  had  reached  the  construction  stage. 
Water  right  charges  up  to  $250  per  acre  are  proposed 
in  Utah.  It  must  be  remembered  that  the  maximum 
water  right  charge  is  fixed  in  the  contract  with  the 
state,  so  that  the  state  officials  are  to  blame  if  excessive 
charges  are  allowed.  The  aim  ordinarily  is  to  give  the 
contractor  a  good  profit  and  at  the  same  time  to  pro- 
tect the  settler.  In  Oregon  the  practice  has  been  to 
fix  the  maximum  charge  at  "the  actual  cost  of  con- 
struction plus  seventy-five  to  one  hundred  per  cent 
profit,  to  reimburse  him  for  the  risk,  cost  of  selling  and 
other  necessary  expenses  in  addition  to  the  usual  con- 
struction cost." 


CHAPTER  XI. 
THE  RECLAMATION  ACT. 

In  the  case  of  United  States  v.  Hanson,  167  Fed. 
881,  the  Federal  Circuit  Court  of  Appeals  thus  ex- 
pressed itself  regarding  the  need  for  the  Reclamation 
Act: 

Congress  passed  the  Reclamation  act  to  make  marketable 
and  habitable  large  areas  of  desert  land  within  the  public  domain, 
which  lands  are  valueless  and  uninhabitable  unless  reclaimed 
by  irrigation  and  the  irrigation  whereof  is  inmpracticable  except 
upon  expenditure  of  large  sums  of  money  in  the  construction 
of  a  system  of  reservoirs  and  distributing  canals.  All  previous 
efforts  of  the  government  to  make  these  arid  lands  available 
for  settlement  had  resulted  in  failure.  By  the  Desert  Land  act 
of  March  3,  1875,  Congress  has  made  provision  for  their  use 
by  individual  settlers,  and  on  March  3,  1877,  had  enacted  further 
legislation  to  facilitate  the  reclamation  of  such  lands  by  private 
entrymen,  and  in  1894,  to  provide  for  the  irrigation  of  the  arid 
public  lands,  had  passed  the  Carey  act,  by  which  it  proposed  to 
donate  to  the  states  in  which  such  lands  were  located,  so  much 
thereof,  not  exceeding  one  million  acres  in  each  state,  as  the 
state  would  cause  to  be  reclaimed.  These  efforts  having  failed 
to  accomplish  the  desired  end,  the  Reclamation  act  was  passed. 

Although  the  a'bove  statement  may  be  considered 
entirely  too  strong  by  many  who  have  watched  the 
development  under  the  Carey  Act,  it  is  certain  that 
the  many  western  societies  interested  in  irrigation 
labored  for  years  to  secure  the  passage  of  some  act 
under  which  the  nation  itself  would  do  the  actual  con- 
struction work  in  connection  with  storage  and  diver- 
sion projects.  After  many  unsuccessful  attempts  the 
Reclamation  Act  was  finally  passed  on  June  17,  1902. 

123 


124  WESTERN    WATER    LAW 

The  Act  creates  a  fund  known  as  the  "Reclama- 
tion Fund"  from  the  moneys  received  from  the  sale 
of  public  lands  in  the  following  western  states:  Ari- 
zona, California,  Colorado,  Idaho,  Kansas,  Montana, 
Nebraska,  Nevada,  New  Mexico,  North  Dakota,  Okla- 
homa, Oregon,  South  Dakota,  Utah,  Washington,  and 
Wyoming.  As  the  public  lands  in  Texas  belong  to 
the  state,  the  original  Act  did  not  include  Texas  but 
its  provisions  were  later  extended  to  Texas  by  spe- 
cial congressional  and  state  legislation. 

The  Secretary  of  the  Interior  is  authorized  to  do 
the  many  things  provided  for  in  the  Act  and  in  con- 
nection with  the  development  of  any  project  he  must 
withdraw  from  public  entry  the  lands  required  for 
the  irrigation  works  and  also  must  withdraw  from  all 
entry,  except  under  the  Homestead  laws,  the  lands 
deemed  irrigable  under  the  proposed  project.  If  later 
'the  project  is  held  to  be  not  feasible  the  lands  so  with- 
drawn are  to  be  restored  to  entry.  The  two  with- 
drawals mentioned  above  were  originally  called  first 
form  withdrawal  and  second  form  withdrawal.  As  the 
irrigable  lands  could  'be  entered  under  the  Homestead 
Act,  although  subject  to  all  the  limitations  and  condi- 
tions of  the  Reclamation  Act,  they  were  settled  upon 
in  many  cases  just  as  soon  as  it  was  known  that  a 
Reclamation  project  was  proposed.  As  the  project 
had  not  been  sufficiently  developed  for  the 
Land  Office  to  know  what  lands  would  be 
irrigated,  much  land  was  occupied  above  the 
canal  lines.  Furthermore,  as  the  project  was 
slowly  developed  and  as  the  settlers  had  few 
means  of  making  a  livelihood,  there  was  much  dissat- 
isfaction. This  difficulty  was  removed  in  the  later 
projects  by  the  Secretary  of  the  Interior  withdrawing 
all  lands  under  the  first  form.  There  was  some  ques- 
tion as  to  the  legal  power  of  the  Secretary  to  with- 
draw irrigable  lands  under  the  first  form  and  the  doubt 
was  removed  by  a  Congressional  Act  in  1910.  By  an 
amendatory  Act  approved  February  18,  1911,  it  is  pro- 
vided that  no  entry  shall  be  made  and  no  entryman 
shall  be  permitted  to  go  upon  lands  reserved  for  irri- 


RECLAMATION   AOT  125 

gation  purposes  until  the  Secretary  of  the  Interior 
has  established  the  unit  of  acreage,  fixed  the  water 
right  charges  and  the  date  when  water  will  be  deliv- 
ered. ~7/*?I 

As  soon  as  a  project  is  found  practicable  and  con- 
tracts have  been  let,  the  Act  provides  that  the  Secre- 
tary "shall  give  public  notice  of  the  lands  irrigable 
under  such  project,  and  limit  of  area  per  entry,  which 
limit  shall  represent  the  acreage  which,  in  the  opinion 
of  the  Secretary,  may  'be  reasonably  required  for  the 
support  of  a  family  upon  the  lands  in  question ;  also 
the  charges  which  shall  be  made  per  acre  upon  the  said 
entry,  and  upon  the  lands  in  private  ownership  which 
may  be  irrigated  by  the  waters  of  said  irrigation  proj- 
ect, and  the  number  of  annual  instalments,  not  exceed- 
ing ten,  in  which  such  charges  shall  be  paid  and  the 
time  at  which  such  payments  shall  commence."  The 
charges  announced  by  the  Secretary  in  the  public 
notice  are  determined  with  a  view  of  returning  to  the 
fund  the  cost  of  the  project  and  in  practice  are  appor- 
tioned equally  throughout  the  project. 

The  public  lands  subject  to  entry  can  be  entered 
only  under  the  provisions  of  the  Homestead  Act  in 
tracts  not  less  than  ten  nor  more  than  one  hundred  and 
sixty  acres.  JThe  entry  is  subject  to  the  limitations  and 
conditions  of  the  Reclamation  Act  and  the  commuta- 
tion provisions  of  the  Homestead  Act  do  not  apply. 
The  original  Act  placed  the  minimum  area  at  forty 
acres.  Before  receiving  patent  the  entryman  must  re- 
claim at  least  one-half  of  the  total  irrigable  area  of  his 
entry  and  must  pay  the  charges  apportioned  against 
the  land  entered. 

Although  private  lands  may  be  included  within 
the  project,  no  water  right  for  such  lands  can  be  sold 
for  a  tract  exceeding  160  acres  to  any  one  landowner, 
"and  no  such  sale  shall  be  made  to  any  landowner  un- 
less he  kbe  an  actual  bona  fide  resident  on  such  land 
or  occupant  thereof  residing  in  the  neighborhood  of 
said  land,  and  no  such  right  shall  permanently  attach 
until  all  payments  therefor  are  made."  The  Secretary 
has  ruled  that  residence  within  fifty  miles  of  the  land 


126  WESTERN   WATER    LAW 

shall  be  construed  as  "residing  in  the  neighborhood 
of  said  land."  It  has  also  been  held  that  a  corporation 
is  entitled  to  hold  land  under  a  government  project, 
but  as  a  condition  precedent  thereto  a  showing  must 
be  made  that  the  aggregate  area  held  by  the  corpora- 
tion and  its  stockholders  in  their  individual  capacities 
does  not  exceed  one  hundred  and  sixty  acres.  As 
each  individual  is  allowed  to  hold  one  hundred  and 
sixty  acres  of  private  land  under  such  a  project,  there 
is  little  incentive  for  corporate  holdings. 

The  Secretary  is  authorized  to  use  the  Reclama- 
tion Fund  for  the  operation  and  maintenance  of  res- 
ervoirs and  irrigation  works.  When  the  payments  re- 
quired by  the  Act  are  made  for  the  major  portion  of 
the  lands 'irrigated,  the  management  and  operation  of 
the  irrigation  works  is  to  pass  to  the  landowners 
thereunder  to  be  maintained  at  their  expense  under 
some  form  of  organization  acceptable  to  the  Secretary ; 
but  "the  title  to  and  the  management  and  operation 
of  the  reservoirs  and  the  work  necessary  for  their 
protection  and  operation  shall  remain  in  the  Govern- 
ment until  otherwise  provided  by  Congress."  It  is 
noteworthy  that  the  Act  does  not  specify  that  the  title 
to  the  irrigation  works  shall  pass  to  the  landowners. 
The  only  inference,  therefore,  is  that  the  title  to  the 
works,  as  well  as  reservoirs,  is  to  remain  in  the  Govern- 
ment. 

As  in  a  number  of  other  Congressional  acts,  it  is 
expressly  stated  in  this  Act  that  it  shall  not  be  con- 
strued as  interfering  with  state  or  territorial  laws  re- 
garding the  appropriation,  use  or  distribution  of  water 
used  in  irrigation,  or  as  in  any  way  affecting  any  right 
to  the  waters  of  an  interstate  stream.  The  Secretary 
is  directed  to  proceed  in  conformity  with  the  local 
laws.  The  doctrine  of  appurtenancy  is  included  in  the 
following  larguage: 

Provided,  That  the  right  to  the  use  of  water  acquired  under 
the  provisions  of  this  act  shall  be  appurtenant  to  the  land  irri- 
gated, and  beneficial  use  shall  be  the  basis,  the  measure,  and  the 
limit  of  the  right. 

The  original  Act  provided  that  within  each  ten- 


RECLAMATION   ACT  127 

year  period  the  major  portion  of  the  funds  arising  from 
the  sale  of  public  lands  within  any  state  or  territory 
should  ibe  expended  within  the  limits  thereof.  The 
section  so  providing  was  repealed  by  Congress  in  1910 
so  that  the  Secertary  is  now  at  liberty  to  expend 
moneys  on  feasible  projects  regardless  of  the  geograph- 
ical source  of  such. 

As  stated  above,  the  operations  under  the  Re- 
clamation Act  are  under  the  Secretary  of  the  Interior. 
Prior  to  the  passage  of  the  Act  in  1902,  the  Hydro- 
graphic  Division  of  the  Geological  Survey  had  been 
making  surveys  of  reservoir  sites  and  proposed  canals 
in  many  of  the  western  states.  After  the  passage  this 
Division  became  the  Reclamation  Service  under  the 
supervision  of  the  Director  of  the  Geological  Survey. 
In  1906  the  Service  was  made  a  separate  bureau  of 
equal  standing  with  the  Geological  Survey  and  with 
its  own  director. 

One  of  the  first  projects  undertaken  was  the  Salt 
River  project  made  up  of  lands  about  Phoenix  in  Ari- 
zona. As  practically  all  the  lands  included  were  in  pri- 
vate ownership  the  question  immediately  arose  as  to 
what  lien  should  be  given  the  Government  to  induce  it 
to  build  the  project.  The  lien  in  the  case  of  public  land 
is  assured  as  the  title  cannot  pass  until  all  the  water 
right  payments  have  been  made.  To  satisfy  the  re- 
quirement in  regard  to  the  private  lands,  the  first  so- 
called  Water  Users'  Association  was  formed.  JThe. 
shareholders  of  this  association,  which  is  regularly  in- 
corporated, are  the  landowners  under  the  project.  The 
capital  stock  is  fixed  at  the  estimated  cost  of  the  proj- 
ect and  each  acre  is  entitled  co  one  share  of  stock.  The 
association  enters  into  a  contract  with  the  Secretary 
of  the  Interior  pledging  itself  to  repay  the  cost  of  con- 
struction. Each  shareholder  in  executing  his  stock  sub- 
scription agrees  that  the  payments  due  upon  his  stock 
shall  be  a  lien  upon  his  land  and  shares,  and  that  the 
lien  may  be  enforced  'by  the  association  by  foreclosure 
in  the  manner  provided  by  law  for  the  foreclosure  of 
mortgages.  The  land  is  thus  bound  to  the  association 
and  the  association  to  the  Secretary. 


128  WESTERN   WATER    LAW 

Although  not  necessary  as  far  as  the  lien  is  con- 
cerned, the  practice  has  been  to  compel  entrymen 
on  the  public  lands  to  become  stockholders  in  the  asso- 
ciation. As  provided  in  the  Act,  the  payments  must  be 
paid  in  ten  annual  instalments  and  the  practice  is  grow- 
ing of  fixing  a  graduated  scale  for  the  instalments,  so 
that  they  may  not  be  heavy  during  the  first  few  years. 
The  association  levies  assessments  on  the  shares  of 
stock  from  year  to  year  to  pay  the  instalments.  As 
the  Act  provides  that  the  water  right  payments  must 
be  made  to  the  local  Land  Office,  a  certificate  from 
such  office  is  accepted  as  payment  by  the  association. 

The  receipts  from  the  sale  of  public  lands  to  June 
30,  1910,  and  excepting  the  five  per  cent  of  such  pro- 
ceeds set  aside  for  educational  and  other  purposes, 
"  *  ;  were^$65|584^j^  and  the  estimated  total  receipts  to 
June  30,  1911,  including  $213,998  from  the  sale  of 
townsite  lots,  were  $71,717,990.  The  net  investment 
of  this  fund  in  "reclamation  works  on  June  30,  1911, 
to  $60,940,834.  -  -**JLt>f  >  g-  5|>  3  |  *) 

No  new  projects  have  been  undertaken  since 
March  4,  1909,  and  up  to  that  time  thirty-two  primary 
projects  (that  is,  projects  actually  under  construction) 
have  been  undertaken,  the  net  investment  in  which 
on  June  30,  1911,  amounted  to  $59,989,158.  The  area 
of  land  to  which  water  could  be  supplied  under  such 
projects  on  June  30,  1911,  was  1,025.609  acres  and  the 
total  area  under  such  projects  was  3,101,450  acres. 
The  charges  levied  on  lands  under  such  projects  are 
divided  into  "water  right  -building  charges"  and  "water 
right  operation  and  maintenance  charges."  The  aggre- 
gate return  for  the  former  to  June, 30,  1911,  was  $1,533,- 

and  for  the  latter,  $517,394.^  }  7  7t/J.  f"-  T/^o/ 

A  number  of  the  projects  are  so  large  that  it  was 
originally  planned  to  complete  only  a  portion  and  allow 
the  returns  from  the  Act  itself  to  pay  for  the  extension 
work.  In  order  to  complete  such  projects  in  the  imme- 
diate future,  Congress  in  1910  authorized  a  special  bond 
issue  of  $20,000,000,  no  part  of  which  can  be  spent  on 
new  projects. 


RECLAMATION   ACT  129 

As  was  to  be  expected  where  the  operations  are  of 
such  magnitude  and  cover  so  much  territory,  the  con- 
stitutionality of  the  Reclamation  Act  was  early  at- 
tacked but  thus  far  it  has  been  upheld  (United  States 
v.  Hanson,  167  Fed.  881 ;  Burley  v.  United  States,  179 
Fed.  1).  In  a  former  chapter  the  Kansas  v.  Colorado 
case  was  discussed  and  it  was  stated  that  many  at  first 
supposed  that  the  Reclamation  Act  was  therein  de- 
clared unconstitutional.  The  point  made  by  the  Court, 
however,  was  that  Congress  could  not  override  state 
legislation  in  regard  to  the  reclamation  of  arid  lands 
and  the  Supreme  Court  went  on  to  show  that  the  Recla- 
mation Act  not  only  did  not  do  so,  but  specifically  pro- 
vided for  the  observance  of  local  law.  In  the  para- 
graph of  the  decision  showing  the  power  of  the  Gov- 
ernment to  reclaim  lands  emphasis  is  laid  upon  the 
reclamation  of  lands  within  the  territories  and  upon 
the  reclamation  of  public  lands  within  the  states.  In 
the  two  cases  cited  above  as  upholding  the  constitu- 
tionality of  the  Reclamation  Act,  the  question  of  the 
power  of  the  Reclamation  Service  to  build  projects 
for  the  irrigation  of  private  lands  only,  within  a  state, 
was  not  raised.  In  the  second  of  the  two  cases  (Bur- 
ley  v.  United  States,  179  Fed.  1)  the  Court  said : 

It  would  be  strange  if  the  national  government  could  enter 
the  territory  of  a  state  where  there  were  no  public  lands  of  the 
United  States  requiring  irrigation  and  no  public  lands  through 
which  water  flows  necessary  for  the  irrigation  of  arid  lands,  and 
by  legislation  provide  a  system  of  irrigation  for  the  private  lands 
within  the  state  and  control  its  administration.  It  would,  in- 
deed, be  a  strange  proceeding,  and  obviously  wholly  outside  of 
the  authority  of  Congress. 

But  in  this  case  the  United  States  is  the  owner  of  large 
tracts  of  land  within  the  states  named  in  the  act  of  June  17, 
1902.  The  public  welfare  requires  that  these  lands,  as  well  as 
those  held  in  private  ownership,  should  be  reclaimed  and  made 
productive.  To  do  this  effectively  and  economically  with  the 
available  water  supply  large  tracts  must  be  brought  into  relation 
with  a  single  system  or  project.  These  states  having  arid  lands 
have  accordingly  acted  upon  the  subject. 

The  Reclamation  Act  has  now  been  in  operation 
ten  years  and  practically  all  of  its  thirty-two  primary 


130  WESTERN   WATER   LAW 

projects  are  furnishing  water  to  settlers  or  landowners 
by  canals  constructed  'by  the  Government  or  purchased 
as  a  part  of  the  project.  As  the  water  right  charges 
in  a  number  of  cases  are  in  excess  of  $40  per  acre,  the 
burden  of  meeting  the  first  payments  is  in  many  cases 
a  heavy  one.  There  have,  therefore,  been  constant 
appeals  for  relief.  In  commenting  upon  a  suggested 
relief  measure  before  the  Senate  Committee  on  Irri- 
gation, Secretary  of  the  Interior  Fisher  recently  wrote 
as  follows : 

The  passage  of  this  resolution  would  lead  to  similar  de- 
mands from  a  similar  group  of  settlers  on  every  project.  The 
descent  through  successive  general  postponements  to  complete 
repudiation  of  a  just  debt  may  now  be  clearly  discerned  and 
easily  made. 

The  Reclamation  act  was  passed  in  1902  primarily  for  the 
benefit  of  the  West  and  upon  the  request  of  Western  Senators 
and  Representatives.  Many  voices  were  raised  against  it  in  the 
East  freely  predicting  that  the  beneficiaries  of  this  large  expendi- 
ture would  never  repay  the  cost  of  the  works.  These  prophets 
of  evil  did  not  believe  that  the  government  and  people  of  the 
United  States  possessed  the  patriotism  and  wisdom  necessary  to 
carry  through  such  a  great  and  beneficent  enterprise  by  the 
expenditure  of  public  funds  on  a  basis  of  justice  and  efficiency. 
They  held  that  in  a  popular  government  such  an  enterprise  must 
be  dominated  by  selfishness,  and  must  degenerate  into  a  scramble 
for  special  favors  at  the  public  expense.  Nevertheless,  the  act 
was  passed  in  the  faith  that  the  pledge  of  repayment  embodied 
in  its  terms  would  be  fulfilled.  It  is  my  deliberate  conviction 
that  the  passage  of  this  resolution  would  be  a  first  and  very 
influential  step  toward  the  breaking  of  that  pledge  and  toward 
the  failure  of  the  beneficent  reclamation  policy.  I  desire  to  see 
that  policy  extended  and  supported  by  additional  appropriations 
from  the  miscellaneous  public  revenue.  But  the  one  indispen- 
sable condition  to  its  extension,  or  even  to  its  continuance,  is  the 
repayment  by  the  settlers  of  the  cost  of  the  irrigation  works. 
Failing  such  a  repayment  not  another  dollar  should  be  ex- 
pended in  the  construction  of  new  projects  or  in  the  extension 
of  those  already  opened. 

In  framing  the  Reclamation  Act  the  intention  was 
to  make  the  terms  of  payment  no  harsher  than  then 
existed  under  private  projects  and  as  no  private  proj- 
ects allowed  in  excess  of  ten  years,  that  term  was 


r 


RECLAMATION   ACT  131 

adopted.  A  great  many  viewing  only  the  govern- 
mental character  of  the  enterprise  believe  that  this 
period  should  be  extended  to  twenty  or  more  years. 
The  only  reason  suggested  for  greater  leniency  under 
government  projects  than  under  private  projects  is  that 
the  Reclamation  Act  necessitates  residence  upon  or  in 
the  neighborhood  of  the  land.  It  thus  precludes  the 
purchase  of  land  by  one  who  wishes  to  hold  his  pres- 
ent position  and  pay  for  the  immediate  improvement 
of  the  land  by  someone  on  the  ground,  with  the  inten- 
tion of  making  the  tract  his  home  after  reaching  the 
productive  stage.  This  course  is  possible  under  pri- 
vate projects  and  not  only  means  that  the  absent 
owner  and  probably  inexperienced  farmer  may  in  time 
possess  a  tract  easily  farmed,  but  also  is  a  source  of 
income  to  those  residing  on  the  project.  The  only 
object  of  the  residence  restriction  in  the  Reclamation 
Act  is  to  avoid  speculation  and  by  many  it  is  believed 
that  the  restriction  works  against,  rather  than  for,  the 
project.  It  is  certain  that  the  period  for  speculation 
is  the  time  prior  to  the  delivery  of  water ;  that  is,  when 
the  land  values  are  comparatively  low  and  when  no 
payments  need  be  made.  As  soon  as  the  water  is  ready 
for  delivery  and  the  charges  are  imposed,  traffic  in  land 
almost  immediately  ceases  and  the  element  of  specu- 
lation disappears.  It  is  probable  that  Congress  will 
realize  this  condition  in  time  and  repeal  the  obnoxious 
residence  clause. 

The  Reclamation  Act,  in  brief,  provides  a  revolv- 
ing fund — first  accruing  from  the  sale  of  public  lands 
in  the  western  irrigation  states — for  the  construction 
of  irrigation  works  by  the  government  for  the  irriga- 
tion of  both  public  and  private  land  and  for  the  repay- 
ment of  all  moneys  so  expended  kby  the  settlers  and 
landowners  under  the  project.  It  aims  to  secure  actual 
irrigation  by  providing  that  the  title  to  the  water  right 
shall  not  be  given  until  half  of  the  land  has  been 
actually  cultivated.  The  management  of  the  canal 
system  is  turned  over  to  the  water  users  thereunder 
when  a  majority  of  the  payments  have  been  made. 


CHAPTER  XII. 


IRRIGATION  DISTRICTS. 

Legislation  for  the  formation  of  districts  for 
flood  protection,  drainage  and  roads  was  long 
ago  adopted  in  both  the  Eastern  and  West- 
ern states.  Such  acts  secure  for  a  commu- 
nity the  benefits  of  protective  or  public  im- 
provement works  through  taxation,  even  though 
a  minority  of  the  property  holders  object.  As  the 
appreciation  of  the  results  of  irrigation  in  the  interior 
valleys  of  California  spread  during  the  eighties  and 
as  the  obstacle  in  the  way  of  community  enterprises 
of  the  old  partnership  or  ordinary  corporation  type 
seemed  to  be  the  larger  ranchers  who  opposed  the 
movement,  the  compulsory  district  organization  was 
suggested.  The  first  irrigation  district  act  was  adopted 
by  the  California  legislature  in  1887  and  has  since 
been  generally  known  as  the  Wright  Act,  as  State 
Senator  C.  C.  Wright  was  the  most  prominent  cham- 
pion of  the  measure. 

The  California  Irrigation  District  Act. 

The  California  irrigation  district  act  as  amended 
and  supplemented,  was  re-enacted  in  1897  and  is  local- 
ly known  as  the  Bridgford  Act.  Statutes  very  closely 
following  those  of  California  have  been  adopted  in 
every  irrigation  state  with  the  exception  of  Arizona 
(bill  pending  in  legislature  May  1,  1912),  the  Dakotas 
and  Oklahoma. 

1*2 


IRRIGATION    DISTRICTS  133 

The  following  presentation  of  the  provisions  of 
the  irrigation  district  act  is  for  the  Bridgford  Act  of 
California,  but  it  will  serve  as  a  general  statement  for 
such  legislation  in  the  other  states  as  the  points  of 
difference  are  but  few. 

An  irrigation  district  is  initiated  by  a  petition  to 
the  iBoard  of  Supervisors  signed  by  "a  majority  in 
number  of  the  holders  of  title  to  lands  susceptible  of 
irrigation  from  the  proposed  source  and  representing 
a  majority  in  value  of  said  lands."  The  petition  must 
be  published  for  two  weeks  and  be  presented  at  a 
regular  meeting  of  the  board,  at  which  time  a  hearing 
is  given  to  all  those  interested.  If  the  action  of  the 
board  is  favorable  it  defines  the  boundaries  and  divides 
the  proposed  district  into  three  or  five  divisions.  Any 
party  aggrieved  by  the  action  of  the  board  may  appeal 
to  the  Superior  Court. 

After  favorable  action  by  the  board  a  date  is  set 
for  an  election  on  district  organization,  the  notice 
for  which  must  be  published  for  three  weeks.  All 
qualified  electors  within  the  district  may  vote  upon 
the  organization  and  at  the  same  time  vote  for  the 
three  or  five  directors,  an  assessor,  a  tax  collector,  and 
a  treasurer.  Two-thirds  of  all  votes  cast  must  be  for 
the  formation  of  the  district  in  order  to  carry  it.  If 
the  vote  be  favorable  the  board  of  directors  so  elected 
has  control  of  the  district  business,  causes  surveys  and 
plans  of  the  irrigation  system  to  be  made  and,  after 
petition  so  to  do,  causes  a  bond  election  to  be  held. 
At  this  election  a  majority  of  the  votes  cast  is  neces- 
sary to  carry  the  bond  issue.  The  bonds  bear  inter- 
est at  the  rate  of  five  per  cent,  are  payable  from  the 
twenty-first  to  the  thirtieth  year  and  must  be  sold 
at  not  less  than  par. 

The  interest  on  the  bonds  and  the  operation  and 
maintenance  expenses  of  the  district  are  paid  by  taxing 
all  lands  within  the  district  on  an  ad  valorem  basis. 
The  act  specifically  provides  for  the  sale  of  property 
for  non-payment  of  taxes  as  in  the  case  of  non-pay- 
ment of  state  or  county  taxes. 


134  WESTERN   WATER    LAW 

Several  amendments  to  the  district  act  were 
passed  at  the  regular  and  special  sessions  of  the  Cali- 
fornia legislature  in  1911.  The  aim  of  all  of  the  amend- 
ments was  to  secure  a  better  financial  basis  for  the 
sale  of  the  district  bonds.  The  principal  act  provides 
for  a  detailed  examination  of  the  feasibility  of  the  dis- 
tricts by  a  commission,  composed  of  the  Attorney 
General,  the  State  Engineer  and  the  Superintendent 
of  Banks,  when  called  upon  to  do  so  by  the  district 
board  of  directors.  When  the  commission  approves 
the  feasibility  of  any  district  project,  the  bonds  of  the 
district  may  be  registered  at  the  office  of  the  State 
Controller  and  thereupon  shall  be  considered  legal  in- 
vestments for  all  trust  funds  and  for  funds  of  insur- 
ance companies,  banks,  etc.,  and  are  in  general  placed 
upon  the  same  legal  basis  for  purposes  of  investment 
as  the  bonds  of  cities  and  counties,  school  districts, 
or  municipalities. 

Points  of  Difference  in  Irrigation  District  Acts. 

The  principal  points  of  difference  in  the  various 
state  statutes  providing  for  irrigation  districts  are  the 
provisions  regarding  state  supervision;  the  exclusion 
of  land  included  in  the  original  petition;  the  qualifi- 
cations of  voters;  the  rate  of  interest  on  bonds  and 
the  authority  to  sell  bonds  below  par;  and  the  basis 
of  assessment. 

In  Idaho,  Oregon  and  Wyoming,  the  feasibility  of 
the  project  must  be  approved  by  the  state  engineer. 
The  operations  under  the  acts  in  Oregon  and  Wyom- 
ing are  just  beginning  but  a  number  of  districts  have 
been  operated  successfully  for  many  years  in  Idaho. 
In  the  latter  state  the  original  petition  to  the  board 
of  county  commissioners  must  be  accompanied  by 
a  map  of  the  proposed  district.  The  petition  and  map 
are  referred  to  the  state  engineer  for  report  and  if  his 
report  be  against  the  organization  of  the  district  the 
county  commissioners  must  refuse  to  further  consider 
the  petition  unless  it  be  requested  in  writing  so  to  do 
by  three-fourths  of  the  landowners  in  said  proposed 
district.  The  plans  and  specifications  for  the  proposed 


IRRIGATION    DISTRICTS  135 

system  prepared  after  the  formation  of  the  district, 
must  also  be  reported  upon  by  the  state  engineer,  but 
it  is  not  provided  that  such  plans  must  be  changed 
in  order  to  secure  his  approval. 

In  the  California  act  it  is  provided  that  the  board 
of  supervisors  shall  not  allow  to  be  included  in  the 
proposed  district  any  lands  which  will  not,  in  its  judg- 
ment, be  benefitted  by  the  proposed  means  of  irriga- 
tion. This  provision  is  the  general  one,  but  in  Wyom- 
ing it  is  provided,  "nor  shall  any  land  be  included  in 
such  district  if  the  owner  thereof  shall  make  applica- 
tion at  such  hearing  to  withdraw  the  same."  In  Ore- 
gon no  land  can  be  included  in  the  district  which  lies 
within  the  limits  of  any  city  or  town.  In  Colorado  and 
Wyoming  it  is  provided  that  no  land  shall  be  taxed 
for  irrigation  purposes  "which  from  any  natural  cause 
cannot  be  irrigated,  or  is  incapable  of  cultivation." 

In  California  any  elector  residing  within  the  dis- 
trict has  the  right  to  vote  regardless  of  property  quali- 
fications— it  being  generally  understood  that  to  place 
limitations  upon  the  right  to  vote  would  render  the 
section  unconstitutional.  In  Colorado  and  Idaho  the 
voters  must  be  resident  freeholders,  and  the  Oregon 
statute  provides  that  a  bona  fide  owner  of  land, 
whether  a  resident  or  not,  may  vote. 

The  rate  of  bond  interest  varies  from  five  per  cent 
in  California  to  seven  per  cent  in  Idaho,  and  a  number 
of  states  allow  bonds  to  be  sold  at  not  less  than 
ninety  per  cent  of  par  value. 

The  basis  for  assesssment  in  California  is  the  full 
cash  value  of  the  property.  In  Idaho  the  assessment 
is  made  in  accordance  with  the  benefits  received  as 
determined  by  the  board  of  directors.  In  Colorado  and 
Wyoming  all  lands  within  the  district  for  the  pur- 
poses of  taxation  must  be  valued  by  the  assessor  at 
the  same  rate  per  acre.  This  last  method  is  analogous 
to  that  used  by  the  ordinary  irrigation  companies  in 
charging  a  fixed  rate  per  acre. 


136  WESTERN   WATER   LAW 

The  Constitutionality  of  Irrigation  District  Acts. 

Owing  to  the  compulsory  nature  of  the  irrigation 
district  enterprise,  it  was  to  be  expected  that  litiga- 
tion should  be  initiated  immediately  after  the  forma- 
tion of  the  first  California  districts  by  the  landowners 
whose  lands  had  been  included  against  their  wish. 
The  validity  of  the  act  was  assailed  on  every  possible 
ground  but  was  upheld  by  the  Supreme  Court  of  Cali- 
fornia and  finally,  in  the  celebrated  case  of  Fallbrook 
Irrigation  District  v.  Bradley  (164  U.  S.  112),  by  the 
Supreme  Court  of  the  United  States.  Extensive  liti- 
gation has  followed  the  inauguration  of  irrigation  dis- 
tricts in  other  states  but  the  validity  of  the  several 
acts  has  likewise  been  upheld.  There  seems  to  be  no 
question,  therefore,  that  the  many  provisions  of  the 
irrigation  district  acts  are  legally  sound. 

The  report  of  the  case  of  Fallbrook  Irrigation  v. 
Bradley  is  interesting  not  only  for  the  opinion  by  the 
court,  but  also  for  the  argument  against  the  validity 
of  the  act  given  by  Joseph  H.  Choate,  who  in  his  ar- 
gument presents  the  view  of  a  great  number  of  Cali- 
fornians  at  that  time  in  regard  to  the  questionable 
novel  features  of  the  act.  The  following  extract  from 
Mr.  Choate's  argument  shows  what  he  thought  of 
the  new  system : 

This  brings  into  view  the  unique  and,  as  we  believe,  wholly 
unprecedented  features  of  the  scheme  contrived  by  this  act  for 
the  oppression  of  the  farmers  of  California.  We  think  that  the 
statute  books  of  all  states  and  nations  outside  of  California,  prior 
to  1887,  will  be  searched  in  vain,  without  finding  another  such 
example,  and  especially  in  view  of  the  construction  which  has 
been  given  to  certain  details  of  this  statute  by  the  Supreme  Court 
of  California. 

Operations  Under  Irrigation  District  Acts. 

Although  thirteen  irrigation  states  have  irrigation 
district  acts,  only  eight  had  irrigation  district  enter- 
prises irrigating  land  in  1909,  and  only  nine  had  proj- 
ects either  completed  or  under  construction  in  1910. 
The  following  table  taken  from  the  advance  sheets 
of  the  Thirteenth  Census  shows  by  states  the  acreage 
irrigated  by  irrigation  district  canals  in  1909,  and  also 


IRRIGATION    DISTRICTS  137 

the   acreage    included    within    districts    completed   or 
under  construction  in   1910. 

Acreage  Irrigation 
Acreage  Irrigated  Districts  were 

in  1909,  by         capable  of  irrigating 
State.  Irrigation  Districts.  in  1910. 

California    173,793  606,351 

Colorado    115,304  487,370 

Idaho   140,930  329,796 

Montana   4,912  15,040 

Nebraska    76,448  91,076 

Oregon    1,500  5,980 

Utah    8,455  10,802 

Wyoming    11,800  27,050 

A  glance  at  the  above  table  shows  that  there  has 
been  little  irrigation  district  development  outside  of 
California,  Colorado,  Idaho  and  Nebraska  and  that 
such  development  has  been  most  pronounced  in  the 
three  states  first  named. 

Irrigation  Districts  in  California. 

The  Irrigation  Investigations  of  the  United  States 
Department  of  Agriculture  has  gathered  data  for  the 
publication  of  a  report  on  irrigation  districts  in  Cali- 
fornia. Certain  statistical  information  from  the  pro- 
posed report  was  presented  in  a  paper  read  by  Mr. 
Frank  Adams,  in  charge  in  California,  before  the 
Commonwealth  Club  of  California.  On  account  of 
the  growing  interest  in  the  history  of  California  dis- 
tricts, the  following  long  quotation  is  made  from  Mr. 
Adams'  paper: 

Forty-nine  districts  were  organized,  and  of  these  only  25 
ever  issued  any  bonds. 

The  statement  that  practically  all  of  the  49  defaulted  in 
large  amounts  should  therefore  be  reduced  one-half. 

Of  the  24  districts  that  issued  no  bonds,  none  at  this  time 
has  any  outstanding  indebtedness.  Eleven  have  been  legally  dis- 
solved. Twelve  have  not  been  dissolved,  although  they  are  not 
active.  One,  the  Walnut  Irrigation  District,  covering  about  900 
acres  of  land  in  Los  Angeles  County,  near  Whittier,  has  been 
active  and  successful  from  the  date  of  its  organization  and  has 
never  defaulted  in  any  way  in  payment  of  indebtedness. 

Of  the  25  that  issued  bonds,  7  have  made  some  kind  of  a 
settlement  and  have  no  outstanding  obligations  as  districts  at 
this  time.  Two  have  made  settlement,  but  still  have  small  out- 
standing indebtedness  that  either  has  been  declared  illegal  or 
can  not  be  found.  Four  have  made  settlement  by  exchanging 


138  WESTERN   WATER    LAW 

new  for  old  bonds  and  are  now  active,  and  with  the  exception 
of  one,  whose  reorganization  is  not  yet  complete  and  which 
therefore  cannot  be  judged,  are  active  and  successful  and  can 
undoubtedly  be  counted  on  to  pay  both  bonds  and  interest  as 
due.  Five  have  compromise  settlements  pending.  Seven  have 
apparently  been  totally  abandoned,  with  no  plan  of  settlement 
as  yet  seriously  taken  up. 

Where  settlements  have  been  made  they  have  been  so  dif- 
ferent that  it  is  hard  to  explain  them  with  sufficient  brevity  for 
the  purpose  of  this  paper,  and  reference  is  therefore  made  to  the 
table  that  will  be  submitted.  The  lowest  basis  of  settlement  has 
been  30  cents  on  the  dollar,  and  the  highest  between  80  cents 
and  90  cents.  Several  compromised  at  50  cents. 

Of  the  7  districts  that  apparently  have  been  totally  aban- 
doned, and  for  which  no  plans  of  settlement  have  yet  been  seri- 
ously taken  up,  at  least  3  were  wildcat  land-promotion  schemes, 
pure  and  simple,  and  although  reported  favorably  by  engineers 
of  reputation,  apparently  never  had  engineering  justification, 
chiefly  due  to  lack  of  water.  The  outlook  for  them  is  not  en- 
couraging, although  in  time  they  will  without  question  be  cleared 
up  in  some  way.  This  might  also  be  said  of  the  other  four. 

Irrigation  Districts  in  Colorado  and  Idaho 

As  shown  by  the  above  table  from  the  Census  re- 
port, both  Colorado  and  Idaho  have  been  active  in 
irrigation  district  enterprises.  It  has  been  stated 
above  that  the  irrigation  districts  in  Idaho  must  be  re- 
ported upon  by  the  state  engineer.  The  wisdom  of 
such  a  provision  and  the  dire  need  of  it  in  Colorado 
is  clearly  shown  by  the  following  extract  from  the 
Biennial  Report  of  the  State  Engineer  of  Colorado 
for  1909-1910: 

It  is  believed  that  the  organization  and  financing  of  irri- 
gation districts  should  be  subject  to  some  sort  of  state  control. 
The  present  irrigation  district  law,  while  facilitating  the  forma- 
tion of  mutual  enterprises  in  which  each  man  in  securing  the 
irrigation  of  his  own  land  helps  to  irrigate  that  of  his  neighbor, 
unfortunately  lends  itself  to  the  manipulation  of  shrewd  and  un- 
scrupulous promoters  who  do  not  hesitate  to  take  advantage  of 
ignorance  on  the  part  of  many  landowners  with  regard  to  finan- 
cial and  engineering  problems  to  promote  districts  which  may 
or  may  not  have  within  them  the  elements  of  success. 

The  experience  of  the  State  Board  of  Land  Commission- 
ers during  the  past  two  years,  in  which  this  Board  has  found 


IRRIGATION    DISTRICTS  139 

it  necessary  to  cut  in  two  in  many  cases  the  areas  proposed  for 
irrigation  under  the  Carey  act,  indicates  that  a  similar  regula- 
tion and  control  of  irrigation  districts  would  be  for  the  good 
of  all  concerned.  The  irrigation  district  law  should  be  so  modi- 
fied that  no  issue  of  bonds  for  construction  purposes  can  be  made 
until  the  enterprise  has  been  approved  by  the  State  Board  of 
Land  Commissioners.  From  now  on  this  Board  will  always 
have  an  engineer  as  one  member.  It  can,  furthermore,  always 
command  the  services  and  assistance  of  the  state  engineer's  office 
in  any  investigation  which  it  sees  fit  to  undertake.  It  is,  there- 
fore, believed  that  it  is  the  proper  official  organization  to  exercise 
control  over  irrigation  districts. 

The  1909-1910  Report  of  the  State  Engineer  of 
Colorado  contains  statistical  data  for  seventeen  irri- 
gation districts,  voluntarily  furnished  by  the  district 
secretaries.  The  1909-1910  report  of  the  state  engi- 
neer of  Idaho  contains  reports  showing  the  existing 
conditions  of  fourteen  districts — which  reports  are 
made  by  the  district  officers  to  the  state  engineer  in 
accordance  with  a  provision  in  the  district  act. 

The  suggestion  quoted  above  from  the  report  of 
the  State  Engineer  of  Colorado  should  be  incorpor- 
ated in  the  district  act  of  every  state,  although,  as 
stated,  Idaho,  Oregon  and  Wyoming  provide  for  re- 
ports on  the  feasibility  of  the  projects  by  the  State 
Engineer.  The  1911  amendments  in  California  are 
designed  to  give  existing  districts  so  desiring  a  finan- 
cial standing  and  do  not  provide  for  an  examination 
on  the  part  of  the  state  before  the  organization.  The 
reason  most  generally  given  for  the  failure  of  the  early 
districts  in  California  was  the  lack  of  proper  super- 
vision although  the  fact  that  the  movement  was  pre- 
mature and  attended  by  the  difficulties  incident  to 
rapid  colonizing  of  new  territory  was  an  important 
contributing  cause  of  failure. 

Advantages  and  Disadvantages  of  the  District  Organ- 
ization. 

When  the  first  irrigation  district  act  was  passed 
in  California  in  1887,  the  only  large  irrigation  enter- 
prises existing  were  those  owned  by  corporations  (the 
so-called  commercial  enterprises)  delivering  water  to 


140  WESTERN    WATER    LAW 

landowners  having  no  interest  in  the  works.  A  novel 
feature  of  the  district  plan  was  therefore  the  provision 
for  community  ownership.  The  status  today  is  dif- 
ferent. A  large  number  of  the  commercial  enterprises 
have  become  mutual  or  co-operative  (that  is,  the  land- 
owners own  the  irrigation  works)  and  the  extensive 
projects  now  being  operated  or  constructed  under  the 
Carey  Act  and  the  Reclamation  Act  will  ultimately 
be  managed  as  mutual  enterprises.  The  district  act  is 
therefore  no  longer  unique  in  this  respect. 

Owing  to  its  compulsory  provisions  it  is  easier  to 
organize  a  large  project  under  the  district  act  than  to 
form  a  mutual  company  for  the  irrigation  of  the  same 
land.  The  irrigation  district  has,  furthermore,  a  polit- 
ical prestige  unknown  to  the  mutual  enterprise  and 
•  has,  therefore,  far  greater  chances  of  securing  favor- 
able legislation. 

At  present  the  great  obstacle  in  the  way  of  fur- 
ther development  by  irrigation  districts  is  the  diffi: 
culty  of  financing  them.  In  this  the  district  is  also 
not  unique  as  other  forms  of  irrigation  enterprises 
have  the  same  difficulty  in  securing  money  for  con- 
struction purposes.  The  argument  is  often  made 
that  school  districts  and  municipalities  which  depend 
for  their  existence  upon  the  irrigation  district,  have 
no  difficulty  in  selling  bonds  while  those  of  the  irri- 
gation district  go  unsold.  Bankers  and  bond  houses 
answer  that  it  is  due  simply  to  a  lack  of  confidence; 
that  many  irrigation  districts  and  other  irrigation  en- 
terprises have  failed  while  there  are  few  cases  of  school 
district  and  municipal  bonds  proving  bad  investments. 
As  stated  above,  an  attempt  has  been  made  to  remedy 
this  trouble  in  California  by  legislation,  but  the  gen- 
eral view  is  that  no  amount  of  legislation  can  increase 
the  sale  of  bonds  or  increase  the  confidence  in  such, 
and  that  the  only  way  of  proving  to  the  bond-buying 
public  that  the  security  is  good  is  to  show  a  number 
of  successful  irrigation  districts. 

Two  states,  Idaho  and  Oregon,  have  provided  for 
the  use  of  the  funds  of  the  United  States  Reclamation 
Service  in  lieu  of  part  or  the  whole  of  a  bond  issue. 


IRRIGATION    DISTRICTS  141 

There  are  certain  legal  obstacles  in  the  way  of  the 
use  of  the  "Reclamation  Fund"  for  such  purposes,  even 
if  there  were  a  present  surplus  of  money  in  such  fund. 
The  Reclamation  Act  provides  that  no  water  can  be 
furnished  to  an  individual  owning  in  excess  of  160 
acres  and  also  that  the  water  user  must  be  a  resident 
upon  or  in  the  neighborhod  of  the  land  irrigated.  An 
irrigation  district  organized  under  such  restrictions 
would  not  be  legally  sound.  It  will  be  necessary, 
therefore,  to  eliminate  the  above  restrictions  from  the 
Reclamation  Act  before  the  Reclamation  Fund  can  be 
used  to  finance  irrigation  districts.  Furthermore,  at 
the  present  time  the  fund  has  been  entirely  allotted  to 
regular  Reclamation  Service  projects  so  that  no  re- 
lief from  such  source  is  in  sight  for  the  irrigation  dis- 
tricts. 

Owing  to  the  difficulty  in  disposing  of  irrigation 
district  bonds  at  the  present  time — especially  in  Cali- 
fornia— the  irrigation  district  has  to,  pay  far  more  for 
its  construction  work  than  it  should.  As  the  bonds 
carry  but  five  per  cent  interest  and  must  be  sold  at 
par,  the  ordinary  way  of  handling  both  bids  for  the 
purchase  of  bonds  and  bids  for  construction  work  is 
by  means  of  a  combination  between  contractor  and 
bond  buyer  whereby  the  bond  bnyer  buys  the  bonds 
at  par  and  is  reimbursed  by  the  contractor  who  adds 
twenty  or  more  per  cent  to  his  usual  contract  price. 
It  cannot  be  claimed,  therefore,  that  one  of  the  first 
aims  of  the  irrigation  district  act — that  is,  the  saving 
of  the  profit  of  the  middleman — has  been  brought 
about.  Until  irrigation  district  bonds  are  on  the  same 
basis  as  other  municipal  bonds,  there  will  be  little 
economy  in  the  construction  of  such  work. 

The  irrigation  district  act  provides  that  the  dis- 
tricts shall  have  the  power  of  condemnation  and  this 
provision  in  the  California  act  has  been  considered 
favorably  by  the  United  States  Supreme  Court  (Fall- 
brook  Irrigation  District  v.  Bradley  (164  U.  S.  112). 
In  California  and  a  number  of  other  Western  states 
it  is  generally  believed — although  not  so  specifically 
held — that  only  public  service  corporations  have  the 


142  WESTERN    WATER    LAW 

right  of  condemnation  and  that,  therefore,  a  mutual 
irrigation  company  or  a  commercial  enterprise  for  the 
irrigation  of  a  large  body  of  land  for  subdivision  pur- 
poses would  not  have  such  right.  (Although  a  digres- 
sion, the  point  is  here  suggested  that  as  the  Califor- 
nia legislature  in  1911  passed  a  statute  providing  that 
"Irrigation  in  the  State  of  California  is  hereby  declared 
to  be  a  public  necessity  and  a  public  use,  and  the 
power  of  eminent  domain  may  be  exercised  on  behalf 
of  such  public  use  *  *  *,"  it  is  high  time  for  a 
test  case  to  be  made  by  an  irrigation  company  other 
than  a  public  service  corporation.  There  seems  to  be 
no  good  reason  why  a  mutual  company  or  a  commer- 
cial enterprise  irrigating  a  few  thousand  or  more  acres 
should  not  have  the  right  of  eminent  domain  as  an 
irrigation  district  has.) 

Aside  from  its  power  of  eminent  domain,  the  main 
advantage  of  the  district  organization  is  the  authority 
of  the  majority  to  force  the  unwilling  landowners  to 
enter  an  irrigation  enterprise.  This  power  of  the 
majority  and  the  fact  that  (in  most  states)  all  voters 
within  the  district,  whether  property  owners  or  not, 
may  vote  on  matters  pertaining  to  the  management 
of  the  district,  is  thought  by  many  to  be  detrimental 
to  the  best  interests  of  the  district.  It  is  thought  that 
under  such  conditions  the  management  of  the  dis- 
tricts is  likely  to  fall  into  the  hands  of  politicians 
rather  than  the  more  able  business  men  of  the  district. 
As  to  the  compulsion  exerted  to  bring  unwilling  land- 
owners into  the  districts,  this  is  now  of  less  import- 
ance as  the  interest  in  irrigation  is  so  great  at  the 
present  time  that  there  is  little  objection  in  any  district 
to  its  formation  and  therefore  this  advantage  is  more 
theoretical  than  real  in  a  number  of  instances. 


CHAPTER  XIII. 

THE    DESIDERATUM    IN    LEGISLATION    RE- 
GARDING THE  PUBLIC  WATERS. 

The  legal  principles  governing  the  use  of  water 
are  the  result  of  judicial  decisions  rather  than  legis- 
lation. Just  as  the  doctrine  of  riparian  rights  is  the 
outgrowth  of  the  old  common  law  as  interpreted  by 
the  English  courts,  so  the  doctrine  of  prior  appro- 
priation is  the  outgrowth  of  the  customs  of  the  pio- 
neer miners  and  irrigators  as  interpreted  by  the  West- 
ern courts.  To  continue  to  exist  as  common  law  a 
legal  principle  must  be  reasonably  adapted  to  the  time 
and  the  place.  The  strictly  arid  states  long  ago  abro- 
gated the  doctrine  of  riparian  rights  because  it  was 
wholly  unsuited  to  conditions  there  existing,  and  Cali- 
fornia has  refused  to  follow  the  English  common  law 
rule  of  percolating  waters  for  the  same  reason. 

Riparian  Rights. 

The  Western  states  still  tolerating  even  a  modi- 
fied riparian  doctrine  are  only  semi-arid  and  naturally 
the  older  and  larger  cities  are  in  the  semi-humid  sec- 
tion. It  is  therefore  not  strange  that  their  supreme 
courts  still  find  some  virtue  in  the  doctrine.  Where 
irrigation  is  not  the  first  aid  to  successful  agriculture 
the  riparian  doctrine  seems  rational,  and  it  would  be 
at  least  unusual  for  one  residing  in  a  non-irrigated 
section  and  trained  in  the  common  law  of  the  books 
to  consider  the  doctrine  of  prior  appropriation  as  other 
than  a  makeshift  of  frontier  camps.  During  the  last 
decade,  however,  irrigation  has  been  given  a  tremen- 

143 


144  WESTERN   WATER    LAW 

dous  impetus  and  the  great  size  of  the  many  projects 
undertaken  in  the  semi-arid  states  has  done  much  to 
show  the  unsuitability  of  the  riparian  doctrine. 

The  doctrine  of  prior  appropriation  on  the  con- 
trary is  proving  more  and  more  adapted  to  the  needs  of 
growing  communities  with  restricted  water  supplies. 
The  cardinal  principle  being  reasonable  use  and  the 
elimination  of  waste,  no  ditch  is  allowed  to  divert  water 
unless  there  is  actual  immediate  need  for  the  use 
thereof.  The  popular  notion  of  the  exclusive  owner- 
ship of  water  finds  no  authorization  in  the  books.  On 
the  contrary  expressions  like  the  following  show  the 
attitude  of  the  courts : 

It  is  the  policy  of  the  law  that  the  best  methods  should  be 
used  and  no  person  allowed  more  water  than  is  necessary,  when 
properly  applied,  and  thus  a  larger  acreage  may  be  made  pro- 
ductive by  its  extended  application.  Little  Walla  Irr.  Union  v. 
Finis  Irr.  Co.— Ore— 124  Pac.  668. 

As  an  instrument  of  the  best  development  the 
superior  claims  of  the  doctrine  of  prior  appropriation 
is  perhaps  nowhere  better  shown  than  in  the  very 
recent  case  of  Schodde  v.  Twin  Falls  Land  &  Water 
Company,  decided  by  the  Supreme  Court  of  the  United 
States  on  April  1,  1912,  (32  Sup.  Ct.  Rep.  479).  The 
plaintiff  owns  lands  riparian  to  the  Snake  River  in 
Idaho  and  by  means  of  a  number  of  water  wheels, 
from  24  to  34  ft.  in  diameter,  elevated  the  waters 
thereof  to  irrigate  his  lands.  The  defendant  company 
by  the  construction  of  the  Twin  Falls  dam  and  the 
consequent  back  water  destroyed  the  current  and  ren- 
dered his  wheels  useless.  If  the  doctrine  of  riparian 
rights  were  recognized  in  Idaho  the  remedy  of  the 
plaintiff  would  have  been  unquestioned,  but  the  doc- 
trine was  long  ago  abrogated.  The  Supreme  Court 
in  affirming  a  judgment  of  dismissal  quotes  with  ap- 
proval the  following  words  of  the  trial  court : 

It  is  unquestioned  that  what  he  has  actually  diverted  and 
used  upon  his  land,  he  has  appropriated;  but  can  it  be  said  that 
all  the  water  he  uses  or  needs  to  operate  his  wheels  is  an 
appropriation?  As  before  suggested  there  is  neither  statutory 
nor  judicial  authority  that  such  a  use  is  an  appropriation.  Such 


THE   DESIDERATUM  145 

a  use  also  lacks  one  of  the  essential  attributes  of  an  appropria- 
tion,— it  is  not  reasonable. 

The  opinion  is  but  another  illustration  of  the  point 
that  the  doctrine  of  prior  appropriation  aims  towards 
the  highest  use  and  greatest  development,  and  is 
adapted  to  the  time  and  the  place. 

Despite  the  weakness  of  the  riparian  doctrine,  it 
is  the  accepted  rule  of  propertyniTlie'  semi-humid 
states.  As  it  has  been  fixed  upon  us  by  the  courts, 
legislation  attempting  to  abrogate  it  for  lands  now  in 
'private  ownership,  would  be  futile  and  should  not  be 
attempted.  The  suggestion  has  been  made  to  lessen 
the  statutory  period  now  allowed  a  riparian  owner 
in  which  to  bring  an  action  for  wrongful  diversion.  It 
is  a  practical  idea  and  worthy  of  adoption,  but  any 
change  in  the  doctrine  itself  must  be  made  by  the 
courts. 
Percolating  Waters. 

California  is  the  only  irrigation  state  which  does 
not  follow  the  common  law  rule  that  percolating  waters 
belong  to  the  owner  of  the  soil.  Excepting  California 
there  can  be  no  need  of  legislation  regarding  the  use 
of  such  waters. 

In  California  the  courts  have  departed  from  the 
common  law  and  have  laid  down  a  new  rule  somewhat 
analogous  to  that  of  riparian  rights  in  the  surface 
streams.  Under  the  new  rule  the  owner  of  land  over- 
lying a  body  of  percolating  water  is  entitled  only  to 
a  reasonable  use  of  such  upon  his  overlying  land  and 
may  enjoin  any  diversion  of  such  water  to  lands  not 
overlying  which  will  interfere  with  his  reasonable  use. 
Where  a  surplus  exists,  the  court  may  fix  the  time  and 
amounts  for  the  pumping  of  percolating  water  to  lands 
not  overlying. 

To  be  constitutional  any  legislation  in  California 
regarding  percolating  waters  must  be  declaratory  of 
the  principles  established  by  the  courts.  The  scien- 
tific and  technical  questions  which  arise  in  the  de- 
termination of  the  source  and  amount  of  percolating 
waters  are  so  many  and  so  difficult  to  positively  answer, 
that  few  claimants  will  be  satisfied  with  a  determina- 


146  WESTERN    WATER    LAW 

tion  not  approved  by  the  higher  courts.  Until  ad- 
ministrative officers  have  demonstrated  their  efficiency 
in  determining  rights  to  the  surface  flow,  there  is  little 
hope  of  them  being  given  an  opportunity  to  deal  with 
percolating  waters.  At  the  present  time  the  courts 
have  established  rules  of  their  own  which  will  con- 
serve such  waters,  and  those  who  are  striving  for 
better  water  legislation  in  California  should  concen- 
trate their  efforts  in  behalf  of  the  surface  supply. 

Irrigation  Versus  Navigation. 

As  Congress  has  the  superior  right  to  legislate 
regarding  the  navigability  of  streams  which  may  be 
used  in  interstate  commerce,  any  conflict  between 
the  interests  of  irrigation  and  navigation  rising  out 
of  the  diversion  of  the  waters  of  such  streams  cannot 
be  anticipated  and  avoided  by  state  legislation.  In 
certain  parts  of  the  West,  especially  on  the  Colorado 
and  Sacramento  Rivers,  the  clash  is  imminent.  As 
action  by  congress  in  favor  of  irrigation  would  be  diffi- 
cult to  secure  and  of  doubtful  validity,  the  question 
must  be  settled  by  the  communities  involved.  The 
investments  in  irrigation  works  and  the  industries  de- 
pendent thereon  are  increasing  each  year,  while  other 
means  for  transportation  are  leaving  little  call  for  that 
by  water. 

As  the  War  Department  in  order  to  maintain  the 
navigability  of  a  river  may  stop  the  diversions  from 
the  tributaries  as  well  as  from  the  main  stream,  it  is 
clear  that  in  most  cases  the  material  wealth  of  whole 
counties  might  be  jeopardized.  It  seems  certain, 
therefore,  that  public  policy  demands  diversions  of 
the  summer  flow  even  to  the  detriment  of  navigation, 
and  that  such  conflicts  will  be  adjusted  to  so  allow. 
"Monopoly"  in  Public  Waters. 

As  ordinarily  defined  "monopoly"  signifies  that 
the  "monopolist"  has  control  over  output  and  prices. 
So  construed  there  can  be  no  monopoly  in  the  waters 
of  our  streams. 

The  various  types  of  irrigation  enterprises  may 
be  grouped  as  follows:  United  States  Reclamation 


THE   DESIDERATUM  147 

Service  enterprises;  Carey  Act  enterprises;  irrigation 
districts ;  co-operative  or  mutual  enterprises ;  commer- 
cial enterprises;  and  individual  and  partnership  enter- 
prises. As  explained  in  the  previous  chapters  all  of 
the  types  become  mutual  excepting  the  commercial 
enterprises — which  supply  water  for  compensation  to 
parties  who  own  no  interest  in  the  works.  It  has  also 
been  shown  that  the  rates  of  the  commercial  enter- 
prises are  subject  to  regulation  by  public  officers  and 
that  the  water  right  of  the  enterprise  belongs  to  the 
land  owners  and  not  to  the  operating  company.  It  is 
therefore  certain  that  so  far  as  the  water  right  is  con- 
cerned no  monopoly  can  exist  in  the  irrigation  busi- 
ness. 

The  expression  is  generally  associated  with  the 
hydraulic  development  of  electric  power,  but,  as  all 
public  utilities  are  subject  to  rate  fixing  by  the  proper 
state  authorities,  any  control  of  output  and  prices  can 
be  terminated.  According  to  present  decisions  the  water 
right  of  power  plants  is  vested  in  the  owner  thereof, 
and  this  must  always  be  the  rule  where  the  riparian 
right  exists.  In  the  case  of  appropriation  rights  legis- 
lation should  be  adopted  providing  that  appropriations 
for  power  purposes  may  be  authorized  as  indeterminate 
licenses  and  that  the  water  right  shall  be  considered  of 
no  value  in  rate  fixing  and  in  condemnation  by  the 
state  or  other  public  unit.  There  is  no  more  reason 
why  a  power  company  should  be  allowed  to  capitalize 
a  water  right  than  there  is  for  an  irrigation  company. 
In  regard  to  other  franchises  the  courts  have  been 
doing  their  part  in  attempting  to  reduce  fictitious  capi- 
talization, and  it  is  high  time  for  all  legislative  bodies 
to  positively  provide  for  the  elimination  of  any  chance 
of  capitalization  in  franchises  granted  by  them  or 
under  their  acts. 

Legislation  Regarding  Appropriations. 

Every  western  state  has  statutes  fixing  the  pro- 
cedure to  be  followed  in  making  appropriations.  Ari- 
zona, California,  Colorado,  Kansas,  Montana,  Texas 
and  Washington  have  departed  little,  if  at  all,  from  the 


148  WESTERN    WATER   LAW 

method  of  posting  notices.  The  remaining  irrigation 
states  have  a  central  office,  the  state  engineer's,  in 
which  applications  for  permission  to  appropriate  water 
are  filed  and  the  conditions  fixed  under  which  the  right 
may  be  perfected.  Most  states  give  this  central  office 
the  right  to  reject  an  application  for  specified  reasons — 
like  lack  of  water  supply,  interference  with  prior  rights, 
or  detriment  to  the  public  welfare.  Such  statutes  have 
been  in  force  for  over  twenty  years  and  there  are  prac- 
tically no  cases  showing  an  abuse  of  the  power  of  re- 
jection. 

A  number  of  states  have  the  central  office  publish 
the  application  so  that  all  interested  may  be  heard  in 
regard  thereto  before  final  action  thereon.  This  prac- 
tice has  proved  of  great  benefit  to  both  the  old  and 
the  new  appropriators.  It  gives  present  users  an 
opportunity  to  know  about  and  protest  against  any 
appropriation  which  might  prove  detrimental  to  their 
own,  and  it  shows  the  intending  appropriator  the  true 
situation  before  he  expends  any  money  in  construction. 
Every  state  following  the  old  method  has  instances 
of  the  construction  of  works  whose  operation  was  en- 
joined immediately  after  completion.  The  new  method 
aims  to  eliminate  such  waste  of  time  and  money. 

It  must  be  emphasized  that  the  new  legislation 
controlling  appropriations  is  based  upon  no  new  legal 
principles.  It  simply  offers  an  improvement  in  the 
details  of  administration — just  as  a  modern  auditing 
system  makes  it  possible  for  a  business  house  to  more 
easily  control  its  operations.  Under  the  new  system 
the  appropriator  is  under  state  control  from  the  initia- 
tion to  the  completion  of  his  project.  It  is  a  control, 
however,  which  protects,  rather  than  prohibits,  bona 
fide  projects.  In  those  states  using  the  old  method 
of  posting  notices  the  records  are  useless  as  evidences 
of  work  actually  done,  and  one  is  never  certain  of  the 
status  of  his  right  during  construction. 

In  those  states  having  no  special  legislation  for 
the  determination  or  adjudication  of  existing  rights  to 
the  stream  flow,  the  status  of  the  various  rights  is 
settled  only  by  ordinary  court  action.  It  is  therefore 


THE   DESIDERATUM  149 

possible  to  have  dozens  of  law  suits  over  water  rights 
on  a  stream  without  all  the  water  users  being  brought 
into  any  one  of  them.  The  new  system  provides  a 
method  for  the  determination  of  all  rights  in  a  single 
proceeding.  Colorado,  Idaho,  Utah,  North  Dakota, 
South  Dakota,  Oklahoma  and  New  Mexico  provide  for 
adjudications  directly  by  the  courts,  and  Wyoming, 
Nebraska  and  Nevada  determine  rights  through  a  non- 
judicial  officer  or  board.  Oregon  in  1909,  combined 
the  two  by  providing  for  a  determination  by  a  board 
which  must  be  affirmed  or  modified  by  the  circuit  court 
before  becoming  final. 

As  the  states  in  which  rights  are  determined  by  a 
board  have  secured  the  best  results,  and,  as  the  Ore- 
gon method  meets  the  approval  of  those  who  think 
such  determination  a  strictly  judicial  matter,  it  is 
recommended  that  the  Oregon  method  be  followed  in 
the  states  not  included  in  the  enumeration  above. 
So  far  as  bringing  all  claimants  into  one  action  is  con- 
cerned many  courts  have  held  that  they  now  have  that 
power  and  have  refused  to  consider  the  merits  of  a  case 
until  all  claimants  were  made  parties.  The  newer 
legislation,  therefore,  simply  insures  this  being  done  in 
every  case. 

Although  one  may  be  successful  in  the  ordinary 
lawsuits  regarding  water  rights  in  those  states  in 
which  the  new  legislation  has  not  been  adopted,  he  is 
without  protection,  other  than  further  court  action,  if 
the  wrongful  diversions  continue.  Here  again  the 
abler  courts  have  taken  the  matter  into  their  own 
hands  and  have  appointed  officers  to  divide  the  waters 
in  accordance  with  the  decree  and  at  the  expense  of 
the  parties  interested.  The  new  legislation  cares  for 
the  distribution  by  dividing  the  state  into  districts  with 
water  commissioners  to  apportion  the  waters  therein 
in  accordance  with  the  determination  of  rights.  The 
system  was  first  introduced  in  Colorado  in  1879  and 
has  been  accepted  by  all  the  western  states  with  the 
exception  of  Arizona,  California,  Kansas,  Montana, 
Texas  and  Washington. 

The   new   legislation   regarding   water   rights   by 


150  WESTERN   WATER    LAW 

appropriation  effectively  provides  for  the  three  essen- 
tials ;  first,  the  determination  of  existing  rights ;  second, 
the  distribution  of  water  among  those  entitled  to  its 
use;  and  third,  the  control  of  the  acquisition  of  new 
rights.  It  is  working  so  well  in  the  many  states  in 
which  it  has  been  adopted  that  there  is  no  good  rea- 
son why  it  should  not  be  generally  accepted.  It  is 
certain  that  a  more  general  knowledge  of  its  many 
good  points  would  dispel  the  existing  prejudice  against 
any  change  in  such  matters  and  bring  about  the  de- 
sideratum in  legislation  regarding  our  public  waters 


INDEX 

Abandonment  of  Water  Rights 47 

Acreage  Irrigated  in  1909 108 

Irrigated  by  Commercial  Enterprises 108 

Irrigated  by  Irrigation  Districts 137 

Act  of  1866   3,       4 

Act  of  1870 3 

Act  of  March  3,  1891 96 

Act  of  May  11,  1898 98 

Act  of  February  1,  1905 98 

Adams,    Frank 137 

Adverse  use,  title  by 47 

Anaheim  Union  Water  Co.  v.  Fuller 23,    24 

Anderson  v.   Bassman 85 

Appropriation,    doctrine   of 1-10,  38-    46 

Posting  notices  of 6,  8,  10,  80,     81 

Not  restricted  to  public  lands 38 

Waters  open  to 39 

Proceedings  to  effect 41 

Incomplete    43 

Measure  of  right 44 

Principles   of 45 

Legislation  regarding 56-82,  147 

Archer  v.  Chicago  M.  &  St.  P.  Ry.  Co 55 

Arizona,  Riparian  doctrine 14,     51 

Notice  of  appropriation 80 

Area   irrigated 108,  137 

Commercial    enterprises 108 

Avery  v.  Johnson 39 

B 

Bailey  v.  Tintinger 114 

Bear  Lake  v.  Budge , 79 

Bear  Lake  Irr.  Co.  v.  Garland 96 

Bien,    Morris 74,  75 

Bien   v.   Morris 84,  93 

Boehmer  v.  Big  Rock  District 23 

Bonds,  irrigation  district 134,  135,  139,  140 

Boquillas  Cattle  Co.  v.  Curtis 21 

Brewer,  Justice 87.  88 

Broder  v.  Natonia  Water  Co 5,  6 

Burley,  v.  U.  S 129 

Burr  v.  Maclay  Ranche  Water  Co 33-  34 

C 

California,  statutes  governing  appropriations 

7,   8,   9,  20,   21,  38,  43 

Riparian  doctrine 14,  23 

Water   right    legislation 5(5 

Irrigated  area , . , 108 


INDEX 

Commercial    enterprises 108 

Irrigation  District  Act 132 

Area  in  Irrigation  Districts 137 

California  Development  Co 109 

Carey  Act 117-  122 

State  legislation 119 

Development  under 121 

Carey,   Senator 117 

Choate,  Joseph  H 136 

Clough  v.  Wing 1 

Coffin  v.  Left  Hand  Ditch  Co.. . , 12,  20 

Colorado,  Riparian  Doctrine  in 14 

Water  right  legislation 57 

Irrigated    area   in 108 

Commercial  enterprises  in 108 

Anti-Royalty  Act Ill 

Carey  Act  Projects 121 

Area  in  Irrigation  Districts 137 

Irrigation   Districts 138 

Commercial  Irrigation  Enterprises 

See  Irrigation  Enterprises. 

Conger  v.  Weaver 6,  9 

Cookinham  v.  Lewis 82 

Crawford  v.  Hathaway 78 

Crocker  Huffman  L.  &  W.  Co 110 

D 

Desert  Land  Act 21,  22,  115-  117 

DeWolfskill  v.  Smith 10,  41,<  94 

Duckworth  v.  Watsonville 26,  38,  40 

E 

Eddy  v.  Simpson 7 

Estoppel 53 

F 

Fallbrook  Irrigation  District  v.  Bradley 136,  141 

Farmer  Investment  Co.  v.  Carpenter 78 

Farmers  Irrigation  District  v.  Frank 66 

Fisher,  Secretary  of  Interior 130 

Forest   Service 43 

Forfeiture  of  water  rights 47 

Fresno  Canal  &  Irrigation  Co 109 

G 

Gage    Canal Ill 

Gustin  v.  Harting 54 

Gutierres  v.  Albuquerque  Land  Co 89 

H 

Hanson  v.  McCue 29,  32 

Hawley,   Judge 45,  53 

Heilbron  v.  Fowler  Switch  Canal  Co 52 

Hoge  v.  Eaton 84 

Homestead  Act 125 

Hough  v  Porter 21,  22,  40,  49 

Howell  v.  Johnson 84 


INDEX 

Hudson,   McClintock 35 

Hudson  Water  Co.  v.  McCarter 93 

I 

Idaho,  Riparian  doctrine 14 

Forfeiture  of  rights 48 

Water   right    legislation 67 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Carey  Act  Projects 119,  121 

Area  in  Irrigation   Districts 137 

Irrigation   Districts. 138 

Imperial  Water  Co.  v.  Holabird 112 

Interstate  Streams,  water  rights 83-    90 

Inyo  Water  Co.  v.  Jess 43 

Irrigation  Districts 132-  142 

California  Act 132 

Difference  in  Acts 134 

Constitutionality   of  Acts 136 

Operations  under 136 

In   California 137 

In  Colorado  and  Idaho 138 

Advantages  and  disadvantages 139 

Irrigation  enterprises,  commercial 106-  114 

Examples  of 108-110 

Regulation    of Ill 

Types  of 146 

Irrigation  v.  Navigation 146 

Irwin  v.  Phillips 2,      6 

J 

Johnston,   Clarence   T 76 

Jones  v.  Adams 12,  13,  20,  45 

Jones  v.  Conn 22 

K 

Kansas,  Riparian  doctrine 14 

Notice    of   appropriation 80 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Kansas  v.  Colorado 15,  86,  93,  129 

Katz  v.  Walkinshaw 30,  33,    37 

Kern  Co.  Land  Co 108 

King  v.  Chamberlin 41 

L 

Lateral  limits  of  riparian  rights 22 

Leavitt  v.  Lassen  Irrigation  Co 112 

Legislation.     See  Appropriation,  Riparian  Rights,  Perco- 
lating Waters,  Water  Rights. 

Le  Quime  v.  Chambers 35 

Lewis,  Chief  Justice 12 

Lewis,  State  Engineer 79,  102 

Little  Walla  Irr.  Union  v.  Finis  Irr.  Co 144 

Los  Angeles,  etc.,  v.  Los  Angeles 39 

Los  Angeles  v.  Pomeroy 29,     30 

Lux  v.  Haggin , 12,  13,  20,  27,  31,  36,     37 


INDEX 

Mo 

McClintock  v.  Hudson 35 

McCoy  v.  Huntley 44 

M 

Merritt  v.  Los  Angeles 43 

Miller  v.  Bay   Cities   Co 16 

Miller  v.  Enterprise  Co 39 

Miller  v.  Fresno  Plum©  Co 18-    19 

Miller  v.  Madera  Canal  Co 15 

Miller  &  Lux  v.  Madera  Canal  Co 22 

Monopoly  in  Public  Waters 146 

Montana,  Riparian  doctrine 14 

Notice   of   appropriation 80 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Carey  Act  Projects 122 

Area  in  Irrigation  Districts 137 

N 

Nation,  State  v.  Rights  of  Way 103 

Navigable  streams,  appropriation  of 40 

Navigation  v.  Irrigation 146 

Nebraska,  Riparian  doctrine 14 

Water  right  legislation 65 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Area  in  Irrigation  Districts 137 

Nevada,  Riparian  doctrine 14 

Water  right  legislation 73 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Carey  Act  Projects 122 

Area  in  Irrigation  Districts 137 

New  Mexico,  Riparian  doctrine 14 

Forfeiture  of  rights 48 

Water  right  legislation 74 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

North  Dakota,  Riparian  doctrine 14 

Forfeiture  of  rights 48 

Water  right  legislation 74 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Notice  of  appropriation,  example  of 10,  80 

O 

Oklahoma,  Riparian  doctrine 14 

Forfeiture   of  rights 48 

Water  right  legislation 74 

Ophir  Mining  Co.  v.  Carpenter 42 

Oregon,  Riparian  doctrine 14,  22,  26 

Forfeiture  of  rights 48 

Water  right  legislation 76 

Irrigated  area  in 108 

Commercial  enterprises  in .  108 


INDEX 

Carey   Act   Projects 122 

Area  in  Irrigation  Districts  137 

P 

Pacific  Gas  &  Electric  Co 109 

Patterson   Land   Co 110 

Percolating  waters,  definition 28 

Law    of i 28 

Rule  of  v.  Rule  of  Riparian  Rights 35 

Legislation  Regarding 143 

Posting  notices  of  appropriation 6,  80 

Power  purposes,  water  rights  for 101 

Prescription,  title  by 47 

Prior  appropriation.     See  Appropriation. 

Pueblo  rights 29-  30 

R 

Reasonable    diligence 41 

Reclamation  Act 123-  131 

Reclamation  Fund  and  Irrigation  Districts 140,  141 

Relation,  Doctrine  of 6,  7,  9 

Revocable    license 55 

Rights  of  way 94,  105 

By  prescription 55 

Power   purposes 99 

Rincon  Water  Co.  v.  Anaheim 43 

Riparian  Rights  in  the  Western  States 11-  27 

Early    decisions 11 

States  adopting  and  those  rejecting 20 

Lateral   limits 22 

Restricted  to  riparian  land 26 

Summary  of  Principles   27 

Rule  of  v.  Rule  of  Percolating  Waters 35 

Legislation    regarding 143 

Rogers  v.  Overacker 53 

Ross,    Justice 14,  31 

S 

Sacramento  Valley  Irrigation  Co 110 

Sacramento  West  Side  Irrigation  Co 110 

San  Diego  L.  &  T.  Co 109 

San  Joaquin  &  Kings  R.  C.  &  I.  Co 108 

San  Joaquin  &  Kings  R.  C.  &  I.  Co.  v.  Stanislaus  Co 113 

Schodde  v.  Twin  Falls  Land  &  Water  Co 144 

Shaw,   Justice 31 

Smith  v.  Hawkins    49,  50 

Smith  v.  Hope  Mining  Co 47 

South  Dakota,  Riparian  doctrine 14 

Forfeiture  of  rights 48 

Water  right  legislation 74 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Stanislaus  Water  Co.  v.  Bachman 112 

State  v.  Nation,  rights  of  way 103 

Statute   of   limitations 51 

Stewart  v.  Boise,  etc 70 


INDEX 

Still  v.  Palouse  Irrigation  &  Power  Co 22 

Stover,  A.  P 121 

T 

Temple,    Justice 29,    31 

Texas,  Riparian  doctrine 14,    24 

Notice   of   appropriation 80 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Turley  v.  Furman 92 

Twaddle  v.  Winters 15 

U 

Underground  waters,  law  of 27-  37 

Union  Mill  v.  Dangberg 45,  53 

Union  Mill,  etc.,  v.  Ferris    4,  11 

United  States  v.  Hanson   123,  129 

United  States  v.  Rickey  Land   &   Cattle  Co 95 

United  States  v.  Rio  Grande 40 

Utah,  Riparian  doctrine 14 

Forfeiture  of  rights 48 

Water  right  legislation 70 

Irrigated  area  in 108 

Commercial  enterprises  in 108 

Area  in  Irrigation  Districts 137 

Utt  v.  Frey 47 

V 

Vanderwork  v.  Hewes . . .  .* 41 

Van  Sickle  v.  Haines 4,  11,  12,  27,  45 

Verdugo  Water  Co.  v.  Verdugo 54 

W 

Washington,    Riparian   doctrine 14 

Notice  of  appropriation 80 

Irrigated  area  in 108 

Commercial  enterprises  in. 108 

Water  rights,  loss  of 45-    55 

Legislation 56-82,  143-  147 

Legislation,  review  of 77 

On  interstate  streams 83-    90 

Court   decisions 84 

Power    purposes 101-  102 

Who    owns 112 

Watkins  Land  Co.  v  Clements 24 

Weldon,  Judge    43 

Wheeler  v.  Northern  Col.  I.  Co 113 

Wiel,  Water  Rights  in  Western  States 25 

Willey  v.  Decker 84 

Wright,  Senator  C.  C 132 

Wyoming,    Riparian    doctrine 14 

Forfeiture  of  rights 48 

Water  right  legislation 61 

Irrigated  area  in 108 

Commercial  enterprises  in ; 108 

Carey  Act  Projects 119-  122 

Area  in  Irrigation  Districts 137 


